N. Y. Rep.] Opinion of the Court, per VANN, J. There was no merger because the ownership of the mortgage, with the debt secured thereby, and the title to the land, did not meet in the same person. When the fee came back to Edward S. Curtis he had no title to the mortgage, for he had assigned it some months before. There can be no merger, at law, without a union of titles in the same person; nor, in equity, unless, also, there is an intention on the part of those concerned in the transaction that it should operate as a merger. In this case both the union and the intention were wanting. (Purdy v. Huntington, supra; Smith v. Roberts, 91 N. Y. 470; Sheldon v. Edwards, 35 N. Y. 279, 284; Bascom v. Smith, 34 N. Y. 320.) The defendant offered to show an agreement between said Armstrong and Edward S. Curtis, bearing the same date as the mortgage, which recited the conveyance of the property by Curtis to Armstrong, and provided for its reconveyance by Armstrong to Curtis. It contained a stipulation that Armstrong "has no beneficial interest in the above-described property, but holds it subject to a trust." This agreement was immaterial, and was properly excluded on that account. The plaintiff knew nothing of it and was not a party to it. Armstrong's title came from Curtis, and the plaintiff could not be affected by a secret agreement between them that the former should hold the premises in trust for the latter, when, according to the record, he held it in fee at the time the mortgage was executed, and the mortgage contained the recital that it was given to secure the payment of a part of the purchase money. Moreover, the plaintiff has the interest of both the trustee and the cestui que trust, for the one executed while the other assigned the mortgage. After examining all of the exceptions, we think the judg ment was right and that it should be affirmed, with costs. All concur. Judgment affirmed. CHARLES E. FOSTER et al., Appellants, v. JOHN W. BOOKWALTER 1. ATTORNEY AND CLIENT-RELATION DISSOLVED. The relation of attorney and client in respect to services in procuring and defending certain patents is dissolved when with the knowledge of the attorneys, who prepared the papers for the purpose, the client transferred all his right and interest in the patents to a corporation for the benefit of which all the subsequent services of the attorneys in respect to the patents were rendered. 2. APPEAL REVIEW OF JUDGMENT OF REVERSAL. A judgment of the General Term reversing a judgment of the Trial Term entered upon the report of a referee will be affirmed when the preponderance of evidence against the decision of the referee is so great as to justify the reversal, because it can be said, with a reasonable degree of certainty, that the decision was erroneous. Foster v. Bookwalter, 78 Hun, 352, affirmed. (Argued February 8, 1897; decided March 2, 1897.) APPEAL from an order of the General Term of the Supreme Court in the first judicial department, entered July 22, 1894, which reversed a judgment in favor of plaintiffs entered upon the report of a referee and granted a new trial. The nature of the action and the facts, so far as material, are stated in the opinion. Esek Cowen for appellants. There is nothing in the opinion of the General Term or in the record which has any tendency to disturb the disposition made of this case by the referee. (Colgrove v. Tallman, 2 Lans. 100; M. M. P. Co. v. Remington, 109 N. Y. 145.) George Hoadly and Henry L. Scheuerman for respondent. The relation of attorney and client between the plaintiffs and defendant was terminated by the facts proved, and the order of the General Term should be affirmed. (Hoppock v. Moses, 43 How. Pr. 201; Schlater v. Winpenny, 75 Penn. St. 321; Walker v. Dennison, 86 Ill. 142; Rome v. Rand, 111 Ind. 205; Martine v. I. L. Ins. Co., 53 N. Y. 339; Salisbury v. N. Y. Rep.] Opinion of the Court, per MARTIN, J. Brisbane, 61 N. Y. 617; Trumbull v. Nicholson, 27 Ill. 150; Gilbert v. Holmes, 61 Ill. 548, 560; Robb v. Mudge, 14 Gray, 539.) MARTIN, J. This action was brought to recover of the defendant the value of professional services rendered by the plaintiffs, as attorneys, in procuring and defending certain patents which were issued to the defendant and others who were associated with him. As to a portion of the services there is no dispute, the defendant having paid or tendered the amount due therefor. The patents as to which most of the plaintiffs' services were rendered related to certain improvements in the art of manufacturing iron, steel and castings. Some of these improvements were invented by the defendant, and he acquired an interest in others by assignment. All the patents, as to such improvements, were at first the property of the defendant or of the defendant and several persons who were associated with him. Subsequently they organized a corporation under the laws of the state of New Jersey, known as the Bookwalter Steel & Iron Company. The defendant and his associates, including the plaintiffs, who had become part owners thereof, transferred all their rights and interest in and under such patents to that corporation, and received its stock in payment therefor. A large portion of the services performed by the plaintiffs, for which they recovered in the trial court, was in procuring and defending the rights of such corporation under the patents then belonging to it. The only controversy between the parties relates to the services which were performed by the plaintiffs while the corporation was the owner of the property in regard to which they were rendered. The learned referee, before whom this action was tried, held that the defendant was liable as well for the services performed for the benefit of the corporation as those rendered for the defendant's benefit, or in pursuance of his express employment, and directed a judgment against him for the full amount of the plaintiffs' bill, which included all their services Opinion of the Court, per MARTIN, J. [Vol. 152. for which they had not been paid. Upon an appeal from that judgment the General Term reversed the judgment of the trial court and granted a new trial. The case comes into this court upon an appeal from that order, accompanied by a stipulation that, if the order is affirmed, judgment absolute shall be rendered against the plaintiffs. The judgment of the trial court was reversed for errors of law and of fact. It seems from the record that it was reversed upon the ground that the decision of the referee was against the weight of the evidence; that he also erred in finding that William E. Lown, who was a stockholder of the corporation and the manager of its business, was the agent of the defendant, and that the latter was liable for the services performed in pursuance of his direction. It is well settled by this court that, in reviewing the determination of a trial court on questions of fact, when the evidence is conflicting, an appellate court is not warranted in reversing upon the sole ground that, in its opinion, the trial court should have reached a different conclusion, but that to sustain a reversal on the facts by an intermediate court, it must appear that the decision of the trial court is against the weight of evidence, or that the proof so clearly preponderates in favor of a contrary result that it can be said, with a reasonable degree of certainty, that the trial court erred in its conclusions. (Baird v. Mayor, etc., 96 N. Y. 567; Lowery v. Erskine, 113 N. Y. 52, 55; Weber v. Bridgman, 113 N. Y. 600, 607; Bernheimer v. Rindskopf, 116 N. Y. 428, 436; Aldridge v. Aldridge, 120 N. Y. 614, 617; Derlin v. Greenwich Savings Bk., 125 N. Y. 756; Phoenix Iron Co. v. Hopatcong & Musconetcong, 127 N. Y. 206, 212; O. P. R. R. Co. v. Forrest, 128 N. Y. 83, 93; Barnard v. Gantz, 140 N. Y. 249, 253; Cook v. N. Y. E. R. R. Co., 144 N. Y. 115, 117.) It is equally well settled that, upon an appeal to this court from an order granting a new trial, the appellant takes the risk of every exception appearing upon the record, and the respondent may sustain the order by showing any legal error upon the part of the trial court. (Mackay v. Lewis, 73 N. Y. 382; N. Y. Rep.] Opinion of the Court, per MARTIN, J. Noyes v. Wyckoff, 114 N. Y. 204, 206; Roberts v. Baumgarten, 126 N. Y. 336; Rose v. Hawley, 133 N. Y. 315, 321; Reed v. McConnell, 133 N. Y. 425, 435.) The first question to be considered is, whether, under the rule stated, the General Term was justified in holding that the decision of the referee was against the weight of evidence. In examining this question, it will be impracticable, within the proper limits of this opinion, to examine or refer to all the evidence bearing upon it. Consequently, the most we shall attempt to do is to refer briefly to some of the salient facts in the case upon which the learned General Term based its decision. The plaintiffs were fully aware of the fact that, so far as the services in controversy are concerned, they were performed for the benefit of the corporation, and not for the benefit of the defendant. That they well understood this fact is shown by the correspondence between the parties and between the plaintiffs and Lown, who managed the affairs of the corporation. Besides, the plaintiffs were stockholders and also prepared the papers by which the defendant and his associates transferred to the corporation all their rights and interests in the patents in regard to which such services were rendered. While it is true that, before such transfer, the relation of attorney and client existed between the plaintiffs and defendant, still, when the transfer was made, the plaintiffs knew that the defendant had no interest in the subject-matter to which their services related, except as a stockholder in the corporaUnder the circumstances, we think the transfer to the corporation dissolved the relation of attorney and client between the parties as to the subject-matter which was thus transferred. It seems to be an established rule of the law relating to principal and agent and attorney and client that, when the interest of the principal or client in, and his power over, the subject-matter to which the agency relates are extinguished, it dissolves the relation between the parties. (Story on Agency [8th ed.], § 499; oppock v. Moses, 43 How. Pr. 201, 214; Callanan v. Van Vleck, 36 Barb. 324; affirmed tion. |