By the Court.
Berry, J.We are unable to perceive how the finding of the referee as to the number of yards of excavation done by plaintiff in January, 1869, and as to the value of the extra filling at the curve, can be justified upon the evidence. -We are inclined to think that, as there was testimony in the case tending to show that a part, at least, of the January excavation was never estimated by the engineer, and that he made no estimate after December, it was not necessary to plaintiff’s case that he should prove the amount of his-excavar tion by reference to the engineer’s estimate. The engineer’s failure to estimate the January, excavation could not deprive *416plaintiff of his right to payment or to recover payment. The same considerations would apply to the extra work, if it was the duty of the engineer to estimate that at all, which does not clearly appear.
The plaintiff being accustomed to excavate by the yard, and to being paid by the yard, we are of opinion, as suggested by his counsel, that it was competent for him to state his estimate of the number of yards excavated, although he had made no measurements. The testimony would not be very satisfactory, but it might be worth something. His testimony as to the amount of excavation, is as follows: “ I think I did about 2,800 yards in January; ” and in reference to the manner in which he arrived at this opinion, he says: “ The last item of 2,800 yards in January, 1869,1 guessed at.” Now? admitting that, by “ guessing at ” this item, he means that he exercised his judgment in arriving at it, still his testimony is not that he thinks that he excavated 2,800 yards, but that he excávated about 2,800 yards.
This is the only testimony, so far as we can discover, upon which the referee could base his finding, that the January excavation was 2,800 yards. We think the testimony too vague and indefinite to permit us to say that it has a reasonable tendency to support the finding, especially when it is considered in connection with the testimony of Col. DeGraff to the effect that nearly all of the work in section 41, (where plaintiff claimed to have excavated said 2,800 yards,) was completed by the first day of January, 1869, and that whatever might have been done in January was included in the December estimate, and in further connection with the following testimony of plaintiff himself, viz.: “ On section 41 I did some work in November, December and January. Since I worked some on section 41 in January. I can’t tell when in January we quit on section 41. Did not work the whole *417month. Another man had worked on 41 before I commenced. I took his job off his hands. I bought him out * * * The work on section 41 was not all measured in the estimate for December.”
As to the extra work in filling on curve there is testimony tending to show that about 100 days work were expended by plaintiff in such filling, and in moving cord wood, but there is no testimony tending to show how much of this work was expended in filling, or how much in moving the wood. We are, therefore, unable to see how it was open to the referee, upon the testimony, to arrive at his conclusion, that the work performed in filling was of the value of $ 150.
For these reasons it seems to us that the order denying a new trial must be reversed.
There is one other point in the case, which should be determined in reference to a new trial. It seems that, in an action against plaintiff, defendants were summoned as garnishees, in which character a judgment was rendered against them, the amount of which was set up and allowed' as a counter-claim in the case at bar. Defendants set up a further counter-claim for counsel fees and necessary expenses as such garuishees, beyond the costs which were allowed them for travel and attendance. But we are of opinion that the referee properly rejected said counter-claim. There is no authority for allowing such fees and expenses, except in the garnishee proceeding, and by and in the discretion of the court in which such proceeding is pending. Gen. Stat., eh. 66, § 173.
Order denying new trial reversed.