(dissenting). The plaintiff in this action, executrix of an attorney, sues to recover the value of services rendered to defendant, also an attorney.
The complaint alleges that during the pendency of the probate proceeding defendant informed plaintiff, executrix and petitioner in the proceeding, that the testator had expressed a wish during his last illness that defendant should continue the prosecution of decedent’s suits at law and requested plaintiff to advise decedent’s clients of said wish and to suggest to the clients that they communicate with defendant; that in reliance upon the information and in compliance with said request plaintiff gave the advice and made the suggestion requested by defendant, and defendant subsequently became substituted in place of the decedent in several of said lawsuits and received a fee in one of them amounting to $3,842.40. Plaintiff further alleges that the reasonable value of the services so performed by plaintiff at defendant’s request is one-third of the fee received in said law suit.
The court below, pursuant to motion made under rule 106 of the Rules of Civil Practice, dismissed the complaint on the ground that it does not state facts sufficient to constitute a cause of action, upon the theory that the contract set out in the pleading was illegal and void under section 270 of the Penal Law.
While I agree with Justice Lydon that there is nothing illegal in the s.greement pleaded by plaintiff, I cannot concur in the view that no agreement entitling plaintiff to recover “ is either alleged or susceptible of inference from the facts pleaded.”
It seems to me that proof of the facts pleaded would make out a prima facie case for plaintiff.
Williston in his work on Contracts (Vol. 1 [Rev. ed.], § 36) says that any conduct from which a reasonable person in the offeree’s position would be justified in inferring a promise in return for a requested promise by the offeree amounts to an offer. “ The common illustration of this principle is where performance of work *817or services is requested. If the request is for performance as a favor, no offer to contract is made, and performance of the work or services will not create a contract; but if the request is made under such circumstances that a reasonable person would infer an intent to pay for them (and this is always a question of fact under all the circumstances of the case) the request amounts to an offer, and a contract is created by the performance of the work. And even though no request is made for the performance of work or service, if it is known that it is being rendered with the expectation of pay, the person benefited is liable.” (See Babcock v. Anson, 122 App. Div. 73; Matter of Agnew, 132 Misc. 466; Gilday v. Hennen, 79 id. 252.)
“ In the ordinary case, where there is no relationship existing between the party rendering the service and the party for whom the service was rendered, proof that the service was rendered at the request and with the consent of such party would establish a prima facie case for the plaintiff.” (Keener on Quasi-Contracts, pp. 317,318, note.)
The order should be reversed and the motion denied, with ten dollars costs and disbursements.