Despite the fact that appellant did not seek to recover on a quantum meruit basis, the learned Official Referee must have fixed the acount allowed on that basis. There is no proof of fraud or illegality in the inception of the retainer, but an interpretation is required *934to determine whether the contingent percentage provided for therein should apply on the gross or net recovery. By the terms of the retainer appellant is entitled to 40% of the net amount, $6,412.01, or $2,564.80. Nolan, P. J., Cars-well, Adel, Wenzel and Schmidt, JJ., concur.