To direct a new trial here on the main reasons outlined can only be considered supererogatory.
The real question is whether plaintiffs are entitled to'2% or 20% on “ retainages
Except for the testimony of Janien, which, in view of the surrounding circumstances was inherently incredible and indicated at best a ‘ ‘ none so blind as those who will not see ’ ’ attitude, it is clear that for litigation 20% would apply and that the 2% came into the picture if negotiation was the only route pursued.
If, as a Trial Judge, I too would have considered that the conclusion was clear, I cannot say that the trial court here was wrong on that score.
However, on the collateral issue of whether the percentage would apply to the judgment. figure or the lesser settlement figure, the situation was such that I would provide for the lesser settlement figure, and, only if the plaintiffs failed to so stipulate,' would I reverse and order a new trial.
Stetjer, Tilzer and Eager, JJ., concur in Per Curiam opinion; Ktjpfermax, J. P., dissents in an, opinion.
Judgment, 'Supreme Court, New York County, entered on July 14,1969, so far as appealed from, reversed, on the law, and a new trial directed, with costs and disbursements to abide the event.