TRIAL-instructions in accordance with unsound authority, fol- mode of examining and objecting to examination of party when question as to services must be submitted to jury, 1. error, 1. TRUSTS-effect of bequest to executors in trust to receive income, to whom right to require an accounting of trustee belongs U. UNDERTAKING ON INJUNCTION-what a reference to ascertain damages under, deter- USURY-defense gone, after judgment, 47. grantee of mortgagor precluded from pleading, 364. usurious interest, voluntarily paid, must be sued for within V. VENDOR AND PURCHASER-covenants; conditions subsequent; VERDICT-not sustained, if injury could have resulted, 1. W. WILL-apportionment of taxes between devisecs of term of years bequest to executors in trust to receive income and pay to WITNESS-examination of adverse party before trial, 129. examination of party or interested witness, when former not privileged in proceedings under non-imprisonment WITNESS-subpæna unnecessary on examination of parties before though uncontradicted and unimpeached, may be dis- when plaintiff not compelled to make discovery, &c., 143. ABBOTT'S NEW CASES. BRAGUE v. LORD. Court of Appeals; December, 1876. [Reversing 41 Super. Ct. (J. & S.) 193.] ATTORNEY AND CLIENT.-EVIDENCE.-SECTION 399 OF THE CODE. In one part of a conversation between a person since deceased and a third person, at which the plaintiff was present, the former made a remark which alluded to the latter, and at the same time turned his head toward the latter. Held, that this was a personal communication within the intent of section 399 of the Code, and the plaintiff could not, as against the executors of the deceased, testify to the remark so made.* An attorney suing for compensation for his services, claimed in one count of his complaint upon his retainer as attorney, and in a second count upon an offer of reward by the plaintiff. Held, that the erroneous admission of testimony tending to show retainer, although there was other sufficient and competent evidence to sustain a finding of retainer, was sufficient ground of reversal, there being also evidence from which the jury might have found that his services were rendered in reliance solely on the reward and not on the retainer.t To sustain a verdict when evidence has been erroneously admitted, it * See note on this subject at the end of the case. + As to attorney's claim for reward, compare Grady v. Crooke, this vol. VOL. II.-1 [1] Brague v. Lord. must very clearly appear that no injury could possibly have resulted from the error.* Where a plaintiff claims in his complaint a portion of a reward, as well as compensation for services, the defendant is entitled to have the question whether he had done anything to entitle him to the reward submitted to the jury. Appeal by defendants from a judgment of the general term of the N. Y. superior court. This action was brought to recover for services rendered by the plaintiff, Stephen B. Brague, who is an attorney at law, to Rufus L. Lord, in relation to the recovery of certain stolen property, and also for part of a reward which had been offered for the recovery or restoration of the property. After the commencement of the suit Rufus L. Lord died, and it was continued against his executors, Thomas Lord and David N. Lord. The property stolen consisted of bonds and securities, part of them the property of Mr. Lord and part the property of a Mr. Barron. After the larceny the plaintiff acted as the attorney for Mr. Barron in the matter, and claims that while so acting he was introduced by Mr. Barron to Mr. Lord, and afterwards acted as attorney for Mr. Lord, and upon his retainer, in the same matter. The defenses upon the trial were that the services rendered by the plaintiff in the matter were rendered on the retainer of Mr. Barron, and not on the retainer of Mr. Lord; and also whatever the plaintiff did in the matter for Mr. Lord was done with the expectation of earning the reward, and not upon any employment by Mr. Lord, or under any understanding that Mr. Lord should compensate him therefor. * Compare in contrast with this, Goodwin v. Hirsch, 37 Super. Ct. (J. & S.) 5, 12,-where it was held that if the case was determined by the court without going to the jury, the error would not be fatal. Brague v. Lord. The plaintiff introduced evidence of various services rendered by him in the matter, such as the preparation or correction of circulars, drawing affidavits, attending examinations in the police court, giving instructions to detectives, attending consultations with Mr. Lord and Mr. Barron, conducting correspondence, &c., &c., and also the testimony of detectives that Mr. Lord referred them to him for instructions and information, and for the payment of disbursements. He also testified to certain conversations between Mr. Lord and Mr. Barron at which he was present, and in which he took part, and the principal exceptions in the case arise upon the admission of his testimony as to these conversations, the appellants claiming that he was permitted to testify to them in violation of section 399 of the Code. The plaintiff was allowed to testify that he was introduced by Mr. Barron to Mr. Lord as his, Mr. Barron's, attorney. That, on that occasion, Mr. Barron and Mr. Lord talked of a power of attorney they had given, and that they agreed together, on the advice of the witness, to revoke that power, which was done. On a subsequent occasion, the witness testifies to an interview between himself, Mr. Lord, and his brother, Mr. Thomas Lord, at which he says the subject of payment for his services arose; that it was during a negotiation as to an amount to be paid in London, and Mr. Rufus L. Lord said to Mr. Thomas Lord, "We cannot tell what we will have to pay until we know what our lawyer's charges are," turning to plaintiff, the three being together-turning his head towards plaintiff. Other conversations, at which plaintiff was present, and in which he took part, were testified to by him, he being instructed to state only what was said between Mr. R. L. Lord and Mr. Barron, or Mr. Thomas Lord, as the case might be, and to leave out what was said by or to the plaintiff. The jury rendered a verdict for plaintiff for $3000. Brague v. Lord. The Superior Court (41 Super. Ct. [J. & S.] 196) held that the witness was not competent; but that the testimony could not have injured defendant, because there was sufficient other evidence of retainer; and they were of opinion that there was no evidence that the services charged for were done under the offer of reward. They accordingly gave judgment for plaintiff, and therefrom this appeal was taken by the defendants. Charles A. Davison, for appellants.-I. Plaintiff should not have been permitted to testify as to what took place in interviews at which defendant's testator was present; nor as to value of his services, because it was permitting him to testify to a personal transaction had with the deceased; nor as to what a deceased witness swore to on a former trial which took place in the lifetime of the deceased. II. Plaintiff should stand upon the reward, and was not entitled to anything outside of it, if his services were rendered for the reward. III. Proof that he had done nothing to entitle him to the reward should have been admitted. IV. The reward not being offered to plaintiff alone, but being a general offer to all the world, and other persons having been actually engaged in discovering the robbers and the bonds, plaintiff was not entitled to recover, either under the pleadings or the evidence. (Jones v. Phenix Bank, 8 N. Y. 228). Stephen B. Brague, respondent in person.-I. A judgment should not be reversed by reason of immaterial evidence that could not have affected the verdict; the testimony was admissible under the construction of section 399 (Rowland v. Hegeman, 1 Hun, 491; Bronson v. Tuthill, 1 Abb. Ct. App. Dec. 206; Forrest . Forrest, 25 N. Y. 510, 511; Clark v. Brooks, 2 Abb. Pr. N. S. 390, and cases cited; Simmons v. Sisson, 26 N. Y. 264; Lobdell v. Lobdell, 36 N. Y. 327; |