retained the whole amount, resisted the application to compel him to pay, on the ground that the relation of attorney and client never existed between him and the assignee; that he was entitled to retain the whole sum, $1,442.16, to satisfy his claims for services and disbursements in this action and other litigations affecting it, and in prior litigations on behalf of one Campbell, the original owner of the claim in suit, for money advanced to Campbell, and a note indorsed for his accommodation. The dispute as to the facts and as to the amount of the lien of the attorney upon the recovery required, in the judgment of the court, a reference; and the power of the court to order such reference is the question presented by this appeal, the objections urged being that the summary application against an attorney is not available to the assignee of the claim sued on; that it cannot be maintained where the amount of the attorney's lien is in dispute; that it cannot be entertained by the city court against attorneys in actions before it; and that the power of the city court to refer questions of fact upon motions is restricted to actions, and does not include special proceedings of this character.

It has been held that the summary remedy by attachment against an attorney for misconduct is available only to the client, and cannot be assigned with the demand. Bowen v. Smidt (Sup.) 20 N. Y. Supp. 735; In re Schell, 58 Hun, 440, 12 N. Y. Supp. 790. But an expression of opinion by the court of appeals in reviewing the order in the case last cited settles the question:

"If we were permitted to look into the opinion of the general term for the ground of reversal and denial of relief, it would appear that the court was of opinion that the assignee of a client was not entitled to this remedy. While it would, we think, be difficult to show that the supreme court has not the power to entertain the proceedings, even upon the application of an assignee, it certainly could, in the exercise of its discretion, decline to use it; and that may have been the ground of the decision appealed from." Schell v. City of New York, 128 N. Y. 67, 27 N. E. 957.

In the case quoted, the assignment was of the claim of the client against the attorney for the money collected by the latter, and the relation of attorney and client never existed between the attorney and the assignee. In the present case, the transfer of the claim in suit was proposd and accepted during the pendency of the action, with the knowledge of the attorney, who advised against a formal assignment being made at that time, but, having notice of the intention and rights of the parties, must be held to have prosecuted the action for the benefit and on behalf of the real party in interest, the proposed assignee; and so the relation of attorney and client was thus, in a measure, created between them. The assignment of the judgment subsequently made was merely to carry into effect the prior arrangement, of which the attorney had notice.

The assertion of a lien by the attorney is not an answer to summary proceedings, but it is discretionary with the court to proceed in the matter.

"Upon motion, the court summarily disposes of the matter upon principles of equity well understood. The lien of the attorney continues throughout, and includes all the remedies open to the party." Bank v. Todd, 52 N. Y. 489.

The court there distinguished the Case of Paschal, 10 Wall. 491, because there neither party asked the court to settle the amount of the lien. Were the application denied, the client would be left to his action against the attorney; and with regard to that remedy the court says:

"The law is not guilty of the absurdity of holding that after a client has spent years in collecting, through his attorney, a lawful demand, he shall be put to spending as many more to collect it from his attorney, and, if the attorney should not pay, then try the same track again." Bank v. Todd, above. In this case the order of reference required that proof be taken of any liens, claims, or offsets of the attorney; and if any party ought to complain of the order it is the respondent, for the scope of the order seems to include indebtedness for which the lien of the attorney could not be enforced. Code, § 66. The court has power to determine the amount of the attorney's lien by reference. Barber v. Case, 12 How. Prac. 351. The order which was reversed in McKibbel v. Nafis (Sup.) 27 N. Y. Supp. 723, directed the attorney to pay over the whole sum in his hands, disregarding his lien; and that decision is not an authority against the order made in this case, which recognizes and protects the lien. The city court has the same power over attorneys possessed by other courts of record. It is made a court of record by statute (Code, § 2; Laws 1883, c. 26), and, though there are statutory limitations of its jurisdiction of actions, they do not affect its power to enforce all remedies of parties to actions of which it has jurisdiction. As a court of record it has power to punish an attorney for misconduct by which the right of a party to an action or proceeding pending in the court is prejudiced, and to attach in any other case where courts of record have adopted that remedy in order to protect parties. Code, § 14, and subdivision 8 thereof. The city court also possesses the same power as the supreme court to refer questions of fact. The appellant assumes that its power is derived solely from section 3172 of the Code, permitting a reference of special questions of fact on motions in ordinary actions; but it may refer under sections 827 and 1015 of the Code, which by section 3347, subd. 6, are made applicable to actions and special proceedings in the marine (now city) court. Under section 827 the court, when authorized to make an examination or inquiry, may direct a reference to do so, and by section 1015 may direct a reference whenever it is necessary for the information of the court. Whether, therefore, the proceeding against an attorney for misconduct in not paying money collected is to be regarded as a motion in the action, or as a special proceeding (in Schell v. City of New York, it was entitled both ways), the city court had power to refer the questions of fact before it on the application. In this it followed precedent, the supreme court having, as before mentioned, referred the question of the amount to be allowed the attorney for services in a proceeding to attach him for not paying moneys collected. Barber v. Case, above. The order appealed from should be affirmed, with costs and disbursements. All concur.

(12 Misc. Rep. 13.)

FRANKFORT v. MANHATTAN RY. CO.

(Common Pleas of New York City and County, General Term. April 1, 1895.)

1. EXPERT TESTIMONY-HYPOTHETICAL FACTS.

If the facts upon which an expert witness bases his opinion be disputed, he must assume them as only hypothetically not absolutely true.

2. SAME BASIS OF OPINION.

An expert witness cannot base his opinion upon facts not communicated to the jury, nor upon hearsay, nor upon the evidence of others on the trial. (Syllabus by the Court.)

Appeal from trial term.

Action by Sarah Frankfort against the Manhattan Railway Company for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed.

Argued before DALY, C. J., and BISCHOFF and PRYOR, JJ. Edward B. Thomas, for appellant.

A. G. Vanderpoel, for respondent.

PRYOR, J. The plaintiff has recovered a verdict of $5,000 for an injury asserted to be the effect of the defendant's negligence. Whether that injury was the cause of the physical and mental maladies with which she claims to be afflicted, and whether those maladies be incurable, is enveloped in obscurity, and contingent upon the inferences of experts. The surgeon by whom the plaintiff was treated made light of the hurt, and attributed the ailments of which she subsequently complained not at all to the accident, while the surgeon produced on her behalf at the trial represented her condition as distressing and desperate, and imputed it entirely to her injury by the defendant. Obviously, if the testimony of the latter witness be expunged from the record, the judgment cannot stand. In response to an inquiry detailing hypothetically the cir cumstances of plaintiff's injury and the symptoms of her condition, the witness affirmed that condition to be the consequence of the injury, and to be permanent. But on cross-examination he repudiated the hypothesis upon which the question proceeded, and avowed that his opinion was founded on the actual facts of the case, of which some were known to himself, some communicated by the plaintiff, and some collected from the evidence at the trial. What facts were the basis of his opinion was not apparent to the jury. Thereupon the defendant moved to strike out the answer of the witness, and the exception to the denial of the motion dily challenges the competency of the evidence. Link v. Sheldon, 136 N. Y. 1, 32 N. E. 696. Manifestly, the premises, if disputed, fr m which an expert is to deduce his opinion, cannot be presented as the actual facts of the case. The province of the jury may not be so invaded, their verdict anticipated, and the issues they are to try determined by the witness. Hence the necessity of a hy pothetical question. 1 Whart. Ev. § 452. Had counsel propounded the question in a dogmatic form, stating the facts unconditionally,

the court would have instantly rejected it. Is the irregularity any the less if the witness himself repudiate the hypothesis, and say to the jury that the ground of his opinion is an absolute fact? Nor did the witness communicate to the jury the facts upon which his opinion proceeded. The court, therefore, could not asce tain whether those facts were within the scope of the evidence; nor could the jury determine whether they were supported by proof. People v. Smiler, 125 N. Y. 717, 26 N. E. 312; People v. McElva ne, 121 N. Y. 250, 258, 24 N. E. 465; People v. Harris, 136 N. Y. 433, 453, 33 N. E. 65. "A physician cannot be permitted to

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take into consideration facts known to him, but not communicated to the jury." Railway Co. v. Falvey, 104 Ind. 409, 3 N. E. 389, and 4 N. E. 908; 7 Am. & Eng. Enc. Law, p. 497, note. "The party against whom the evidence is offered is entitled, if he so desires, to have an explicit statement made to or by the expert witness of the precise state of facts upon which his opinion is based." Connelly v. Railway Co., 60 Hun, 495, 497, 15 N. Y. Supp. 176. In Atkins v. Railway Co., 57 Hun, 102, 10 N. Y. Supp. 432, a question was condemned because "it leaves the witness to determine what injuries the plaintiff has received from the accident, and what her previous condition had been, without the jury having any knowl edge upon what such determination was based"; and because "it also makes the witness testify, not to an opinion, but to an abso lute fact that the symptoms arose from the injuries which the physician assumed the plaintiff to have received, as regards the nature of which assumptions on the part of the physician the jury were entirely ignorant." And not only did the opinion of the witness proceed upon his own personal knowledge, but also, as he declared, upon hearsay, and "the evidence to which he had listened." This vice alone invalidates his testimony. Link v. Shel

don, 136 N. Y. 1, 32 N. E. 696; In re Snelling, 136 N. Y. 515, 32 N. E. 1006; People v. McElvaine, 121 N. Y. 250, 24 N. E. 465; Guiter. man v. Steamship Co., 83 N. Y. 358; Reynolds v. Robinson, 64 N. Y. 589; In re Mason, 60 Hun, 46, 55, 14 N. Y. Supp. 434; Connelly V. Railway Co., 60 Hun, 495, 15 N. Y. Supp. 176. The testimony of experts is not evidence which courts are disposed to accredit beyond the strict sanction of the law. Ferguson v. Hubbell, 97 N. Y. 507, 514; Roberts v. Railroad Co., 128 N. Y. 455, 465, 28 N. E. 486. Judgment and order reversed, and new trial ordered; costs to abide the event. All concur.

(12 Misc. Rep. 15.)

HENRY v. AGOSTINI et al.

(Common Pleas of New York City and County, General Term. April 1, 1895.) 1. PAROL EVIDENCE-AMBIGUITIES IN WRITTEN CONTRACT.

In elucidation of an ambiguity in a written contract, evidence is admissible of conversations and circumstances attending the negotiation of the agreement.

2. EVIDENCE-ACTS AND DECLARATIONS INTER ALIOS.

Acts and declarations inter alios are not admissible to affect the parties to an action.

3. APPEAL FROM CITY COURT-REVIEW OF EVIDENCE.

Affirmance of a judgment by the general term of the city court precludes all review of the evidence by this court, except to ascertain if there be any to support the judgment.

(Syllabus by the Court.)

Appeal from city court, general term.

Action by Ralph Henry against Joseph Agostini and others. From a judgment of the city court (31 N. Y. Supp. 1128) affirming a judgment in favor of plaintiff, defendants appeal. Affirmed. Argued before DALY, C. J., and BISCHOFF and PRYOR, JJ. Henry L. Burnett, for appellants.

Stewart & Macklin, for respondent.

PRYOR, J. The argument of the appellants proceeds on the assumption of power in this court to reverse the judgment because contrary to the weight of evidence, whereas our only function is to ascertain whether the findings of the trial judge be supported by any competent evidence. Farley v. Lyddy, 8 Daly, 514; McEteere v. Little, Id. 167. In resistance to a recovery by plaintiff for work and material on defendants' buildings, the defenses wereFirst, that the contract was not with defendants; and, secondly, nonperformance of the contract by the plaintiff. As upon both issues, the plaintiff produced sufficient proof to sustain the findings, we are concluded by the affirmance at general term. Dearing v. Pearson, 8 Misc. Rep. 270, 28 N. Y. Supp. 715.

Conceding such evidence, the defendants challenge its competency. By written contract the plaintiff engaged to furnish frames and sashes for "windows" in defendants' buildings, and the question is whether parol evidence was admissible to show that only exterior, and not interior, windows were intended. In the popular sense, undoubtedly, the opening in a light shaft is not a "window," and yet, among builders, the word may be so understood. Being susceptible, therefore, of diverse meanings, the equivocal contract was open to oral explanation,-emphatically so when the object of the evidence was to identify the subject-matter of the agreement. Paper Co. v. Moore, 104 N. Y. 68), 10 N. E. 861; Dwight v. Insurance Co., 103 N. Y. 342, 8 N. E. 654; De Camp v. McIntire, 115 N. Y. 258, 22 N. E. 215; Campbell v. Jimenes (Com. Pl. N. Y.) 23 N. Y. Supp. 333, again on appeal 7 Misc. 77, 27 N. Y. Supp. 351. Though the question calling for the contents of the plan were irregular, the answer is proper, since it speaks only to the condition of the paper when given to the witness, and not to its present appearance. If competent, claim the defendants, the same sort of evidence was allowable to them, but the court ruled otherwise. The offer rejected was of bids and estimates for the work by others, but no such proof was introduced by the plaintiff, and it was plainly irrelevant to the issue in controversy. The fact that others understood the plan to include interior windows, and proposed to furnish them for a little more than the plaintiff charged, tends in no legal sense to ascertain the intent of the contract as accepted by the parties. Besides, acts and declarations inter