Wilkinson v. McLeod

Lehman, J. The plaintiff was engaged to testify as an expert witness in regard to a financial report which he had prepared. It was agreed that he should receive for his services the sum of fifty dollars per day. His direct examination was completed, hut before his cross-examination was completed the hearing was adjourned. [221] The plaintiff refused to attend the subsequent examination unless he was paid his charges to date, and the defendant was obliged to subpoena him to testify at the subsequent examination. The defendant also claims that in the interim plaintiff accepted another retainer antagonistic to his interests. Nevertheless the plaintiff has recovered judgment for the first examination. In my opinion this judgment was erroneous. The contract was not a hiring at will, for though the compensation was arranged per diem it contemplated a distinct piece of work, viz., the preparation and giving of testimony. It was not a severable contract by the terms of which the agreed price for the services became payable each day because by its nature the contract was entire. The defendant could obtain no benefit from his services unless he fully completed his testimony. If the plaintiff refused to appear for cross-examination then his testimony could be stricken out on motion. Where the benefit sought is entire the contract will ordinarily be interpreted as an entire contract. Walsh v. New York & K. Co., 88 App. Div. 477. The plaintiff claims, however, that the contract is in any event complied with by his appearance and completion of the testimony though under subpoena. The plaintiff is, however, not entitled to a recovery if he abandoned the contract and appeared thereafter solely under compulsion of law. Upon this point evidence of the receipt of an antagonistic retainer would in my opinion be material even though not pleaded. Judgment should be reversed and a new trial ordered, with costs to appellant to abide the event. Gtebabd and Delany, JJ., concur. Judgment reversed, and new trial ordered, with costs to appellant to abide event.