Opinion
October 5, 1961
Judgment dismissing the complaint unanimously reversed, on the law and the facts and, in the exercise of discretion, judgment is directed to be entered in favor of the plaintiff against the defendant on the first cause of action in the amount of $5,057.24 with interest from May 1, 1958 and dismissing the second cause of action; costs to the plaintiff-appellant. Upon a prior appeal in this action ( Bornstein v. Silverman, 9 A.D.2d 363) this court granted summary judgment to the plaintiff on the first cause of action and directed an assessment of damages. Implicit in such determination was a holding that counsel fees incurred were properly recoverable by the plaintiff since. in effect, the only damage pleaded in the first cause was the expense incurred for counsel fees. Had the court concluded that there could be no recovery for counsel fees summary judgment would not have been granted. Accordingly, the Referee should have found for the plaintiff on this cause of action for the value of the services and for the moneys disbursed. Since, however, the Referee made no findings with respect thereto we may make findings if there is sufficient warrant in the record to do so. ( Bernardine v. City of New York, 294 N.Y. 361.) From the record we find that the value of the services was $5,000, that the disbursements were $57.24 and we therefore direct that judgment be entered in plaintiff's favor on the first cause of action in the sum of $5,057.24. The Referee found that there was no malice sufficient to sustain the second cause of action. We would not disturb this finding made by the trier of the facts. Accordingly, we affirm the dismissal of the second cause of action. Settle order on notice.
Concur — Rabin, J.P., Valente, McNally, Eager and Steuer, JJ.