The judgment herein should be reversed and a new trial directed on the ground of prejudicial errors in the admission of evidence, failure to charge adequately on the main issue and improper summation by plaintiff’s counsel. In an action for legal services plaintiff has been awarded a 10-to-2 verdict of $228,000. The action is grounded on a written contingent retainer dated January 23,1959. The subject matter of the retainer were claims arising from sales and leasebacks of three parcels of real property originally owned by defendant. This suit relates to legal services in respect of one of the parcels located in Connecticut. Defendant reacquired said parcel in December, 1959. The reacquisition resulted from negotiations which were initiated by defendant during'August, 1958, sometime before plaintiff law firm was retained.
Defendant’s principal contention is that the reacquisition is not within the ambit of the contingent retainer.. Considerable evidence was adduced in support of defendant’s view and plaintiff likewise introduced substantial evidence in support of its claim that the contingent retainer related to said parcel and the benefits derived by defendant from the 'reacquisition. The summation to the jury dealt at length with said issue.
Plaintiff prepared the retainer. Implicit in the court’s charge was ambiguity of the retainer of January 23, 1959 as to its application to the Connecticut property. The rule is that an ambiguous writing "prepared by one is to be resolved against him. (Gillett v. Bank of America, 160 N. Y. 549, 554.) Unmistakable was the issue to which were directed several requests of the defendant, refused by the trial court, to charge the proposition that a retainer agreement prepared by an attorney capable of more than one construction is to be construed most strongly in favor of the client. Defendant was entitled to such a charge. (McAvoy v. Schramme, 238 App. Div. 225, 230, affd. 263 N. Y. 548.) The circumstance that defendant was represented by officials who are lawyers does not affect its right to have had *634the jury so charged. (Samuels v. Simpson, 144 App. Div. 466, 469, affd. 207 N. Y. 643.)
It was prejudicial error to admit evidence of settlement talk by J. Lincoln Morris, a member of plaintiff law firm. The admissions were allegedly made April 12, 1960. Morris testified that Alfonse Landa, defendant’s then chairman of the executive committee, on reading the retainer agreement of January 23, 1959, allegedly said ‘ ‘ you [plaintiff] are entitled to a contingent fee”. Morris also testified to a similar alleged admission at the time made by defendant’s vice-president, who had executed the retainer agreement in behalf of the defendant. Immediately prior to the reception of said testimony, forewarned by pretrial proceedings wherein plaintiff inquired concerning the alleged admissions, defendant’s trial counsel objected to evidence of the conversation on April 12, 1960 on the ground that it was privileged as compromise talk relating to a disputed liability. The objection was overruled and the evidence admitted. Evidence of negotiations having for their purpose the compromise of a dispute is inadmissible. (Tennant v. Dudley, 144 N. Y. 504.)
The basic issue was whether the re acquisition of the Connecticut property was within the scope of the retainer agreement. In the first instance the existence of the ambiguity was a question of law. (17A C. J. S., Contracts, § 617, p. 1254.) Implicit in the submission to the jury was a finding of ambiguity by the court. The tender of the issue to the jury, however, was attenuated by the opinions of defendant’s officials testified to by plaintiff Morris disclaiming any ambiguity. The alleged admissions did not relate to a material fact, which is admissible even if part of the compromise talk. (White v. Old Dominion S.S. Co., 102 N. Y. 660, 662.) The alleged admissions were ‘‘ mere opinions * * * [which] come within the reasons of the rule excluding such admissions ”. (Id., p. 663; Gutkind v. Lueders & Co., 267 N. Y. 320, 329.)
Morris also was allowed, over the objection of defendant’s trial counsel, to testify to compromise talks had with defendant’s representatives on July 27 and August 2, 1960. The substance of the talks was an offer to adjust plaintiff’s claim for services for $50,000 plus an increase of the $1,250 monthly retainer.
The offer of $50,000 was first brought to the jury’s attention in plaintiff’s opening statement. Defendant’s opening rejoined that the offer was defendant’s opinion of the reasonable value of plaintiff’s services, not a concession of liability under the contingent retainer. If the plaintiff’s evidence of the compromise talks had limited itself to the scope of the opening statements, there would be substance to plaintiff’s contention that *635the door had been opened thereon. However, the vice of the evidence given by the plaintiff Morris is that it is inextricably tied in with the alleged admissions of the opinions of defendant’s officials that the contingent retainer agreement applied to the reacquisition of the Connecticut property. Thereby, the monetary offer of the defendant, in recognition of its liability for the reasonable value of plaintiff’s legal services, was conveyed to the jury as an acknowledgment of liability under the contingent retainer agreement.
Plaintiff’s subsequent motion to strike, limited to the testimony of Morris as to the talks on July 27 and August 2, 1960, which was granted, did not eliminate from the jury’s consideration his testimony as to the alleged admissions of liability under the retainer agreement, made by defendant’s officials on April 12,1960. Plaintiff’s said motion to strike, made five days after the testimony, and granted without informing the jury of the substance or significance of the testimony it was required to disregard, did not in any degree mitigate the prejudice to the defendant.
There is no substance to plaintiff’s present contention that the stricken testimony was admissible because the liability was undisputed. This argument assumes the alleged concessions of liability implicit in the opinions of defendant’s officials allegedly voiced on April 12,1960 which, as has been demonstrated, should have been excluded.
Over repeated objections trial counsel for plaintiff in summation improperly argued inferences unfavorable to defendant on the basis of defendant’s alleged failure to call witnesses equally available to ¡both sides. (Hayden v. New York Rys. Co., 233 N. Y. 34, 36; Bishin v. New York Cent. R. R. Co., 20 A D 2d 921.) No unfavorable inference results from the omission to call such a witness. It is improper to so argue in summation. The instructions belatedly made did not serve to eradicate from the minds of the jury the effect of the summation of plaintiff’s trial counsel thereon. (Cohen v. Covelli, 276 App. Div. 375, 377; Walter v. Joline, 136 App. Div. 426; Bagully v. Morning Journal Assn., 38 App. Div. 522.)
Errors in the trial of a jury case do not require a new trial unless they are prejudicial. On this record, however, it might well be assumed that the insinuation of inadmissible evidence and improper arguments in summation were necessary to assure the verdict obtained. (Kohlmann v. City of New York, 8 A D 2d 598; Nicholas v. Rosenthal, 283 App. Div. 9; Walter v. Joline, supra, p. 429.) Moreover, the omission to charge, as requested, that an ambiguous retainer prepared by an attorney is to be *636construed most favorably to the client, in a closely contested case such as this, is in itself prejudicial error.
Valente, Stevens and Eager, JJ., concur with Breitel, J. P.; McNally, J., dissents in opinion.
Judgment affirmed, with $50 costs to respondent.