Martin v. Donnelly

225 A.D. 704 | N.Y. App. Div. | 1928

Per Curiam:

The action was brought to recover the sum of $1,699.30, with interest, for services and expenses as an expert in condemnation proceedings. The terms of plaintiff’s agreement with defendants and' what he was entitled to thereunder were the questions. The case involved questions of fact. The verdict was in plaintiff’s favor for the full amount of his claim. It was supported by the weight of the evidence. The attorney for defendants, who was also a defendant, presented plaintiff’s claim to the court for an allowance in the condemnation proceedings, without plaintiff’s knowledge or consent, and the court directed that the sum of $776.30 be allowed to plaintiff. Defendants claim this is an adjudication upon the value of plaintiff’s services and plaintiff may not further recover in this action. But notice of the motion or proceeding, in which the direction was made, had not been given to him and he did not accept. He was not concluded by the order. And, by his action and by his statement on the argument of the appeal, he has waived any and all claims thereunder. Van Kirk, P. J., Hinman, Davis, Whitmyer and Hill, JJ., concur. Judgment affirmed, with costs.