This is an appeal from an order at Special Term modifying the report of a referee, confirming the same as so modified, and ordering judgment thereon. The mode of practice pursued in this instance is not the subject of review, since stipulations at the Special Term and upon the argument at General Term, waive all such objections and seek a review only upon the merits.
Was the learned judge at Special Term correct in modifying the referee’s report and allowing the defendant the taxable costs, $901.81, rejected by the referee ? The services were in fact rendered. That is conceded. It is also conceded that the $901.81, constitute the taxable costs in the actions brought, but not concluded by Cagger. It is in effect conceded that Cagger’s services in those actions were worth $901.81, if they were not in fact worthless. If the services were valuable to Magee, the defendant was entitled to have such value allowed her, notwithstanding the death of Cagger before complete performance. (Wolfe v. Howes, 20 N. Y., 197.) The amount to be allowed for such services would ordinarily be controlled by the terms of the contract. (Clark v. Gilbert, 26 N. Y., 279.) But cases may exist, where a failure to perform may result in such serious damage or loss as to prevent or reduce very greatly the recovery for services rendered. The plaintiff contends these services of Cagger were in fact worthless, and hence should not be allowed. The referee has not found either way upon this subject, but in his addenda to his report, says he has not taken into account the two actions settled without costs to either party, or the seven actions still pending. Now, I understand, from the stipulations of the parties, that the judge at Special Term took the place of the referee in deciding whether these costs ought to be allowed, and he has found, as appears by the order, that the $901.81 was the amount of costs and disbursement proved on the trial, and allowed the same to the defendant in the accounting. That is in effect finding that such services were valuable and of the value stated. The order and the opinion together, find that Cagger was guilty of no negligence or want of proper skill, which should prevent the recovery for these services. If that be correct the order of the Special Term should be confirmed. (Bowman v. Tallman, 40 How., 1.) The reasoning of the judge in his opinion is quite satisfactory. No *33negligence or want of skill was proved. That should have been established affirmatively by the plantiff. There is nothing to show what would have been the result of the seven cases pending. It does not appear that the notice to be given the tenants should have been given by the attorney, or that it was any part of his duty in the preparation or conduct of the actions. But if it were conceded that the failure to serve the notice was a fatal defect, it does not then follow that the defendant should not be allowed those costs. Failure of success in a law suit is not prima faeie evidence of negligence or want of proper skill. (Bowman v. Tallman, ante.)
I conclude, therefore, that the services were rendered by (Dagger; that the value of such services was $901.81; that the defendant is entitled to have such value allowed, because it is not shown that (Dagger wras guilty of negligence or want of proper skill in the conduct of such actions, and that it does not appeal’ that plaintiff or their testator has suffered any damage by reason of negligence or want of proper skill in Cagger.
The order of the Special Term is, therefore, affirmed, with ten dollars costs, and expenses of printing.
Sawyer, J., concurred. Learned, P. J., did not act.Order affirmed, with ten dollars costs, and printing disbursements.