Opinion
July Term, 1903.
Present — Goodrich, P.J., Bartlett, Hirschberg, Jenks and Hooker, JJ.
Judgment affirmed, with costs.
In this case the agreement signed by the defendants provided that they were to pay the plaintiff nothing for his services and disbursements in case of failure to obtain the abatements or recoveries mentioned in the contract. In Stedwell v. Hartmann ( 74 App. Div. 126) the agreement expressly provided that everything that was done thereunder by plaintiff's testator was to be done "at his own expense." This is the only apparent difference between the two cases, and is not, we think, sufficient to distinguish the case at bar from the Stedwell case. Inasmuch as the latter has been affirmed by the Court of Appeals on the opinion below ( 173 N.Y. 624), the opinion of Mr. Justice Patterson must be taken as settling the law, and is a controlling authority in this case for the affirmance of the judgment.