Tyler

I concur in-the judgment of reversal, but dissent from that part of the opinion which holds that the court erred in sustaining the objection made to plaintiff’s offer to show by his own testimony that it was “agreed between plaintiff, Jane E. Chase, and William Irvine, that plaintiff should continue to prosecute the case as attorney for plaintiff, and if he finally succeeded in getting a judgment, he should be paid out of the proceeds of said judgment, when collected, a reasonable fee and the further offer to show by the same testimony what was agreed at the same time in reference to the written agreement referred to in the testimony of witness Reinstein.

Harrison, J., and Garoutte, J., concurred.

After hearing in Bank, we are satisfied with the conclusion reached in Department, and with the opinion therein delivered by Commissioner Vanclief, and for the reasons stated in such opinion, the judgment and order appealed from are reversed, and the cause remanded for a new trial.

There are four assignments of error herein, two of which are based upon the refusal of the court to permit plaintiff to testify to matters of fact, occurring before the death of Jane E. Chase, deceased, whose administratrix, Clara J. Slater, was a defendant in the action. The only question which arises upon the exceptions to the rulings of the court upon the objections to the competency of the plaintiff to testify as to the matters of fact occurring before the death of Jane E. Chase is, whether the action is prosecuted against the administratrix of her estate, upon claim or demand against said estate. -

The complaint states facts sufficient to constitute a cause of action against said administratrix, and the plaintiff prays for judgment; that there is due him from defendant Clara J. Slater, as administratrix of JaneE. Chase, deceased, the sum of $1,570, payable out of the amount due on a judgment recovered in the action of said Jane E. Chase agai&st one Evoy, in the prosecution of which plaintiff alleges that he rendered the services as the attorney of said Jane E. Chase, for which he claims there is due him- from the administratrix of said estate said sum of $1,570. The…