Section 2-302 of the Uniform Commercial Code, entitled “Unconscionable Contract or Clause” provides “(1) If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause * * * (2) When it is claimed or appears to the court that the contract or any clause thereof may be unconscionable the parties shall be afforded a *645reasonable opportunity to present evidence as to its commercial setting, purpose and effect to aid the court in making the determination.” (Emphasis added to indicate that no claim of <mask> was made by plaintiff, but is considered as it “appears to the court”.)


In Washington, procedural <mask> refers to the lack of meaningful choice, considering all the circumstances surrounding a transaction, including factors such as the manner in which the contract was entered, whether each party had a reasonable opportunity to understand the terms of the contract, and whether the important terms were hidden in fine print. ( *20Torgerson, supra, 166 Wash.2d at pp. 518-519, 210 P.3d 318.) The Washington Supreme Court has "stressed that ' "these three factors [should] not be applied mechanically without regard to whether in truth a meaningful choice existed." ' " (Id. at p. 519, 210 P.3d 318, italics omitted.) In addition, the fact that an arbitration provision exists in a contract of adhesion does not necessarily render such a provision procedurally unconscionable. (Zuver v. Airtouch Communications, Inc. (2004) 153 Wash.2d 293, 304, 103 P.3d 753 (Zuver).)


If the lease is now viewed as a contract, then all the rules of law regarding contracts should apply, including the requirement that the injured party make a reasonable effort to mitigate damages. It is interesting to note, that, even though the plaintiff’s attorney did not point out the clause in the lease, there is a clause, entitled, "Remedies of Landlord,” which give contractually to the landlord the same rights he is claiming under the common law. The clause is so unconscionable on its face that even without the recently enacted statute (L 1976, ch 828, eff July 26, 1976, and applicable to all leases, regardless of when executed), this court would have ruled it unenforceable. Governor Carey in his memorandum of approval, acknowledged that, "The concept of <mask> is not new to the law of this state. The Uniform Commercial Code, at the time of its enactment in 1962, codified the doctrine as it related to the law of sales. It has, however, had limited applicability in landlord and tenant disputes until recently. The doctrine is only now beginning to be judicially


The California Supreme Court has emphasized that, although some courts have used the phrase "shock the conscience" to describe the degree of one-sidedness required to establish substantive <mask>, "an examination of the case law does not indicate that 'shock the conscience' is a different standard in practice than other formulations or that it is the one true, authoritative standard for substantive unconscionability, exclusive of all others." (Sonic-Calabasas A, Inc. v. Moreno, supra, 57 Cal.4th at p. 1159, 163 Cal.Rptr.3d 269, 311 P.3d 184.)


As codified under the Uniform Commercial Code, the term "unconscionability” is not defined, nor are the factors or elements thereof enumerated. The official comment under section 2-302 explains that "[t]he basic test is whether, in the light of the general commercial background and the commer*123cial needs of the particular trade or case, the clauses involved are so one-sided as to be unconscionable under the circumstances existing at the time of the making of the contract. * * * The principle is one of the prevention of oppression and unfair surprise”. Commentators have elaborated on this broad explication to distinguish procedural <mask>, wherein evidence of the contract-formation process must be scrutinized, and substantive unconscionability, wherein substantive elements of unconscionability must be identified in the content of the contract per se, either as an overall "elaborate lopsidedness” of the contract in its entirety, or as an example of "one-clause naughtiness”. (Leif, Unconscionability and the Code — The Emperor’s New Clause, 115 U of Pa L Rev 485, 512, 513; Murray, Unconscionability: Unconscionability, 31 U of Pitt L Rev 1.) Case law in this area has stressed various elements for determining the existence of unconscionability in a particular factual situation. High pressure sales tactics, failure to disclose terms of the contract, misrepresentation and fraud on the part of the seller (i.e., the party offering the contract, often on a take-it-or-leave-it basis; here, the landlord), refusal to bargain on certain crucial terms, clauses hidden in fine print and unequal bargaining power aggravated by the fact that the consumer, in many cases, cannot speak English, have been recognized as procedurally unconscionable. (Nu Dimension Figure Salons v Becerra, 73 Misc 2d 140; Brooklyn Union Gas Co. v Jimeniz, 82 Misc 2d 948.) Inflated prices, including grossly inadequate consideration given by the seller, unfair disclaimers of warranty and termination clauses have been deemed substantively unconscionable. (Industralease Automated & Scientific Equip. Corp. v R. M. E. Enterprises, 58 AD2d 482.) These examples are, by no mean, exhaustive. The concept of unconscionability must necessarily be applied flexibly depending on all the facts and circumstances of a given case. The weight given to each factor is as variable as the facts of each case. (Matter of Friedman, 64 AD2d 70.)


Additionally, the court held the arbitration agreement was unenforceable as to Jasmine in her individual capacity due to <mask>. The minute order states: "As to Jasmine Lopez's individual claims, the court finds the agreement is both procedurally and substantively unconscionable. Jasmine Lopez was not identified as a party to the agreement. In fact, no one was identified as a party to the agreement.[3 ] [Citation.] There was nothing to call out to Jasmine Lopez that she was signing an agreement to arbitrate her own claims. Jasmine Lopez was not shown to be a party to the agreement. Her *317signature block identifies her solely as resident representative/agent. And, the agreement itself was inserted, without heading or highlighting, into a provision otherwise directed to Irene Lopez's claims. As between Jasmine Lopez and Defendants, the agreement lacked mutuality."


The appellant’s assertion that it did not receive value for the forgiveness of debt because the respondent had no equity in the property is without merit. Consideration need not be coextensive or even proportionate, so long as "the value * * * of the thing forborne or promised * * * is acceptable to the promisee” (Weiner v McGraw-Hill, Inc., 57 NY2d 458, 464). "Absent a claim of fraud or <mask>, the adequacy of consideration is not a proper subject for judicial scrutiny” (Spaulding v Benenati, 57 NY2d 418, 423). By failing to pay the first mortgage on the respondent’s property pursuant to the contract, the respondent allowed the first mortgagee to foreclose on the property. The appellant is to blame for failing to protect its own interest in the property; it failed to pay the first mortgagee. Had it paid off the first mortgage, it would have received the value which it now claims that it did not receive.


*467In his affidavit plaintiff claims that he never read and was unaware of the arbitration provision contained in the U-4 form, nor was it brought to his attention. Further, he did not negotiate the terms or provisions contained in the form. However, the court here cannot void the arbitration clause for <mask>. By his own account, Singer is an experienced businessperson, as evidenced by both his years and level of compensation in the field of investment banking. He cannot be heard to say that he was coerced or defrauded into signing such a form.


“[T]he clear intention thus expressed by the parties was this: Even if the tenant shall be evicted; even if for his * * * rental he will receive no * * * use; even if the relationship of landlord and tenant shall have terminated; these facts, nevertheless, ‘shall not be deemed to have absolved or discharged the tenant from any liability hereunder.’ ” (International Pub. v Matchabelli, supra, p 454.) The lease in the present action does not contain the exact language as quoted from the lease in the International Pub. case, but paragraph 23 is a refinement of that principle. Two factors considered by the court are (1) that the liability of the tenant is limited to the actual damages sustained by the landlord and (2) that the payment of the damages has not been accelerated by the termination of such relationship. A similar clause was upheld in the 812 Park Ave. v Pescara case. The court addressed these two factors and found that their presence precluded a finding of <mask>. Further, the landlord has in fact sought to mitigate the damages of the tenants by reletting the premises at the highest available rental.


The doctrine of <mask> " ' "refers to ' "an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party." ' " ' " ( Baltazar v. Forever 21, Inc. (2016) 62 Cal.4th 1237, 1243, 200 Cal.Rptr.3d 7, 367 P.3d 6 ( Baltazar ); Farrar v. Direct Commerce, Inc. (2017) 9 Cal.App.5th 1257, 1265, 215 Cal.Rptr.3d 785 ( Farrar ).) There is both a procedural and substantive aspect of unconscionability; the former focuses on "oppression" or "surprise" due to unequal bargaining power, the latter on "overly harsh" or "one-sided"


*394Mr. Borstein originally sought recovery of <mask> legal fees though his retainer agreement provided, for a one-third contingency fee. In addition to the recovery of securities valued in excess of $700,000, Mr. Berstein’s efforts have ultimately resulted in the payment of $85,000 in settlement. In determining the reasonable value of legal services, factors to be considered, in addition to the actual time and labor expended, are the difficulty of the case, the amount involved and the results obtained. (DR 2-106 [b] [22 NYCRR 1200.11 (b)].) Clearly, the services rendered and the result obtained, largely through the efforts of Leon Borstein (noting that no action whatsoever was taken to pursue this matter after he was relieved until he moved to vacate the stay pending arbitration), warrant approval of the fees agreed to by guardian McMickens.


The Appellate Division of the Second Department determined that there are no damages in <mask> where plaintiff performed services without any expectation of or agreement of compensation. (Absher Constr. Corp. v Colin, 233 AD2d 279 [2d Dept 1996].) The Court found that the work performed was “merely preparatory to performance, and therefore could not constitute the basis for restitution based upon unjust enrichment.” (Supra, at 280, citing Farash v Sykes Datatronics, supra.)


Now, in the present case, the defendant has not made default or refused to carry out the oral contract. But the plaintiff himself, by his complaint, instead of suing on the oral contract, has sued on the <mask> for his services. Thus the plaintiff is the first to repudiate the oral contract, which the defendant has never refused (so far as appears) to carry out, and which he now sets up in his answer. (See Galvin v. Prentice, ut supra, at p. 164, 165.) That this was the ground taken by the plaintiff appears not only by the pleadings, but by the language of the court in its charge, and by the case generally.


Meanwhile, Mr. Starr continued handling the case and in October 2001, the case settled shortly before jury selection was *653to commence, for $135,000. Counsel for defendant then issued a check for that amount in the name of Mr. Starr and plaintiffs Rose and Simone Aiello. Counsel for defendant, Mr. Health, testified at the hearing that Mr. Starr was the only attorney he had dealt with during all the proceedings in the case. Mr. Starr has offered to pay Mr. Issler for the cost and disbursements incurred in the case. Mr. Starr, however, refuses to pay Mr. Issler according to the fee sharing agreement; he has offered to pay him on a <mask> basis, based on the time and effort each attorney spent in the case. Mr. Starr estimates that he performed 96% of the work in the case, and that Mr. Issler performed the remaining 4%. When Mr. Issler refused to accept less than 50% as stipulated in the fee sharing agreement, Mr. Starr instituted this petition for a determination of the fee dispute pursuant to Judiciary Law § 475.


Respondent is not entitled to payment for work done on the theory of <mask> because he has failed to establish the actual repair work, if any, performed on the owner’s car (Vehicle and Traffic Law § 398-d [1]). Furthermore, the Motor Vehicle Repair Shop Registration Act requires that all work done by a motor vehicle repair shop be recorded on an invoice describing all service work done and parts supplied. The invoice must clearly state whether the parts supplied were original equipment, nonoriginal equipment, or used replacement parts. The statute further requires that one copy of the invoice be given to the customer and one copy retained by the repair shop.


In our opinion, the lower court did not improvidently exercise its discretion in awarding judgment in favor of the plaintiffs who substantially performed under the contract. The contract indicates that there was a clear meeting of the minds between the parties. Under the circumstances, even absent full compliance with General Business Law § 771, the subject contract was enforceable (see, Wowaka & Sons v Pardell, 242 AD2d 1; see also, Porter v Bryant, 256 AD2d 395). We note that had there been no signed written contract, the plaintiffs would have nevertheless been entitled to an award for completed work based on a theory of <mask> (see, Pepe v Tannenbaum, 279 AD2d 620; Frank v Feiss, 266 AD2d 825; William Conover, Inc. v Waldorf, 251 AD2d 727).


Plaintiff brought this action to recover a commission allegedly due and owing for his services in procuring a lessee for real property owned by defendants in the City of Oneonta, Otsego County. After defendants answered the complaint, which asserted a single cause of action sounding in breach of contract, plaintiff moved to compel compliance with certain discovery demands previously served on defendants. Thereafter, defendants moved for summary judgment; plaintiff opposed that motion and cross-moved for, inter alia, permission to amend the complaint to assert two additional causes of action, one seeking reformation predicated on mutual mistake and the second based upon <mask>.


The Supreme Court properly concluded that the landscaping *799services provided by the appellant fall within the meaning of a home improvement as defined by the Administrative Code § 21-11.1 (3). That section provides that a home improvement is an "improvement or addition to any land” and "other improvements to structures or upon land.” It is well established that an unlicensed home improvement contractor cannot recover for services rendered in contract or in <mask> (see, Richards Conditioning Corp. v Oleet, 21 NY2d 895; Bujas v Katz, 133 AD2d 730; Mortise v 55 Liberty Owners Corp., 102 AD2d 719, affd 63 NY2d 743; George Piersa, Inc. v Rosenthal, 72 AD2d 593; Segrete v Zimmerman, 67 AD2d 999). Accordingly, the appellant’s lien was properly discharged (see, Mortise v 55 Liberty Owners Corp., supra). Balletta, J. P., Thompson, Santucci, Altman and Hart, JJ., concur.


In the affidavit of services by the attorneys for the attorney in fact, who are actually one and the same, there is a statement that “ our fee arrangement is for twenty (20%) per cent of the. net distribution to our clients ”. This will not be used by the court to determine the measure of compensation here (cf. Matter of Bargel, 5 Misc 2d 657, affd. 7 A D 2d 645; see, also, *1007Matter of Geiger, 12 Misc 2d 1043). The court fixes the compensation of the attorney in fact, in <mask>, in the sum of $500, plus disbursements as itemized.


However, the ordinary contract involving a business or commercial transaction between parties must be distinguished from one between an attorney and Ms client whereby the latter engages the legal services of the former. By reason of the relation of the trust and confidence implicit in the relationship of attorney and client the dealings of the attorney with his client must be on a plane above those prevailing on the market place. And because of this, the client is at liberty to discharge his attorney at any time with or without cause, leaving the compensation for the attorney’s services then to be fixed on a <mask> basis.


The conditions under which these moneys were advanced by the claimant throw grave doubts on his right to recover therefor. During the entire period covered by his account he was a member of decedent’s family, provided with board, lodging and the advantages of a home with her. Where the relations existing between parties are such that it is evident that the acts performed were mere matters of gratuitous kindness and affection in consequence of reciprocal obligations and advantages, without expectation of pecuniary compensation, the law will not imply a promise to pay. A person cannot perform services, intending them to' he gratuitous and with a tacit understanding that no pecuniary charge is to be made, and afterwards recover on a <mask> for the same. Moore v. Moore, 3 Abb. Ct. App. Dec. 312; Matter of Stewart, 21 Misc. 412.


It seems to this court that section 38 of the Lien Law requires an itemization of materials and labor only in a case where the lien is based on <mask>. Where the work has been completed, and the contract was for an agreed price, nothing would be accomplished by requiring the lienor to furnish an itemization of materials furnished and labor performed in performance of the contract. In such a case an itemization would not accomplish the purpose of the section as stated in Callipari v. 516 East 11th St. Corp. (166 Misc. 79, 80): “It was intended by the statute that there be an itemization of the claim so that the owner or contractor might check against the claim of the lienor.” Where, however, there is no agreed price, or the work on a contract for an agreed price is not completed for whatever reason, a lien may be filed only for the value of the materials furnished and labor performed (Lien Law, § 3). In such a case, the itemized statement under section 38 of the Lien Law serves a purpose, namely, to apprise the owner or contractor of the detail of the lienor’s claim, and of the basis for the statement of value as set forth in the lien.


‘‘ The general rules concerning breach of covenants of quiet enjoyment are quite clear. Whether the breach of the covenant is alleged as a defense to an action for rent due, or is used as a basis for an action for damages, the determining factor, with few exceptions, is whether the tenant has vacated the premises * * * It should be emphasized that the acts of the landlord must preclude the tenant from the beneficial enjoyment of the premises. Thus, in an action for rent, it is not sufficient for the tenant to defend on the theory that there was a diminution of the beneficial enjoyment of the property. (Edgerton v. Page, 20 N. Y. 281; Two Rector St. Corp. v. Bein, 226 App. Div. 73.) Furthermore, there must be an abandonment of the premises by the tenant. (Boreel v. Lawton, 90 N. Y. 293; Thomson-Houston Elec. Co. v. Durant Land Improvement Co., 144 N. Y. 34.) Lastly, the ouster by the landlord, or the justified abandonment of the premises, amounting to an eviction in law, must have occurred before the rent has become due. (Fifth Ave. Bldg. Co. v. Kernochan, 221 N. Y. 370; Sully v. Schmidt, 147 N. Y. 248.) If the tenant is ousted before the rent becomes due, the landlord may not maintain an action in <mask>. (Christopher v. Austin, 11 N. Y. 216.)


While this appeal was pending, defendants moved for leave to reargue the order denying their motion to dismiss. In November 2013, Supreme Court granted leave to reargue, determined that it had erred in its prior order by refusing to dismiss the causes *1291of action for dissolution and an accounting of the partnership, and dismissed those causes of action. Accordingly, defendants have received the relief requested with respect to these causes of action, and that part of their appeal has been rendered moot (see Njoku v City of New York, 280 AD2d 283 [2001]; see generally Matter of Neeley v Town of Colonie, 79 AD3d 1560, 1561 [2010]). As Supreme Court adhered to its original determination relative to the causes of action for imposition of a constructive trust and <mask>, however, that aspect of defendants’ appeal is unaffected (see CPLR 5517 [a] [1]).


Granting for the development of the argument, that the Consul possessed authority to enter into a retainer agreement binding upon *883the distributees for the services of an attorney other than in a pending proceeding in this court, which on the facts of this case is most doubtful, the remuneration to which the latter would be entitled would depend wholly upon principles of <mask>. In the usual case this involves an evaluation based upon the size of the estate, the labor necessarily involved, and the professional standing of the person or persons performing the service. (Matter of Sharp, 140 Misc. 427, 433; Matter of Scher, 147 id. 791, 793.)


On the breach of contact claim, the trial court found the jury hopelessly deadlocked and declared a mistrial. At Tierney's request, the court decided that claim in a statement of decision. It found Tierney failed to perform his contractual obligations and was not entitled to specific performance. But the jury reached a verdict in Tierney's favor on the <mask> claim, *102awarding him $156,000 as the reasonable cost of work he did at Nasir's Mountain View gas station. The court vacated this verdict because Tierney had not produced a certificate of licensure to show his compliance with Business and Professions Code section 7031. The trial court thus entered judgment in favor of the Naz Parties and awarded them attorneys' fees, costs, and other expenses.


*876The question as to whether or not the existence of an invalid (because of Personal Property Law, § 31) contract, and the claim having been tried on that theory, bars consideration of a <mask>, in a mild form, is presented in the instant case. Readily imaginable would be more extreme cases in which a determination absolutely adverse to a claimant would produce a shockingly unjust result. Imagine a case wherein, by means of emphatically expressed and frequently repeated promises, an unscrupulous and designing promisor had taken advantage of someone, more simple-minded and ignorant of the law, who had served him faithfully over a long period of time and at great expense to himself; or consider a case wherein the promisor, though having no cunning design and intending to act in good faith in his relation to the promisee, was overtaken by the grim reaper, as appears to have happened in the present case, before he got around to making his will, or having executed a will, upon his death, it turned out to be inadmissible to probate, or one lost or destroyed, or one suppressed by someone. Situations like any one of these indicate that, if a claimant is able to overcome the handicap of section 347 of the Civil Practice Act, though his claim in the full amount of what the alleged promised legacy, if it had been duly bequeathed, would have been is effectively barred by section 31 of the Personal Property Law, such a claim ought, nevertheless, to be recognized and allowed to some extent by way of an award of a quantum meruit. In my opinion the statute relied upon by the administrator does not necessarily compel its construction and application as being so absolute as to prohibit any consideration whatsoever of a quantum meruit as the preventative of an, otherwise, resulting unjust enrichment of others at the expense of a claimant. For a somewhat analogous case to this effect, see Hubbard v. Hubbard (151 App. Div. 174).


Petitioner’s belated attempt to recover in <mask> for services rendered must also be rejected. No proof has been offered as to the nature, duration or value of the services and the court cannot arbitrarily fix a figure in the absence of such proof. There is nothing to indicate that the not ungenerous support and allowance received by petitioner was not intended as compensation for those services.


Where as here, there is a dispute as to the elements proving the existence of a contract, a plaintiff is not required to elect a remedy to recover but may proceed on theory of contract for the balance due or <mask> for the reasonable value of services rendered. The parties did not have a written contract and it is clear that plaintiff did not set forth in advance an hourly rate or per page charge for transcription. Plaintiff, however, did testify that she charged $40 hourly and that this job took four or five days. She further testified that the tapes were extremely difficult to transcribe, which was undisputed.


It must next be determined whether the defendant’s porter was acting within the scope of his employment, apparent or authorized, in taking the plaintiffs bag from him for the purpose of carrying it into the train. The duties of a Pullman porter are necessarily incapable of exact definition, but they certainly embrace the duty to be as helpful to Pullman passengers as conditions permit. Assisting a passenger to get on the Pullman car is clearly within the scope of a porter’s employment, and that duty carries as a necessary concomitant the duty to assist passengers with their baggage. The porter, Miles, testified that it was the custom and his duty to assist Pullman passengers on and off the cars with their baggage. No *455case has arisen in this State which passes upon this precise point, but analogous cases laying down a rule that is necessarily binding here are Holmes v. North German Lloyd S. S. Co. (184 N. Y. 280) and Hasbrouck v. New York Central & H. R. R. R. Co. (202 id. 363). In the Holmes case the defendant’s baggage master took charge of the bags of a passenger of a steamboat as she was about to carry them onto the boat, assuring her that they would be carried to her room. The bags were never delivered to the plaintiff at her cabin or elsewhere. The Court of Appeals affirmed a judgment for the plaintiff for the value of the bags and their contents. In the Hasbrouck case the defendant’s trainman took a passenger’s bag into his custody in order to assist her in alighting from the train. When she alighted the bag was handed back to her by the trainman, but upon examination some time later she discovered that some of its contents were gone. She had not seen the bag between the time of its delivery to the trainman and its return to her. A judgment in her favor was affirmed by the Court of Appeals. If the employees involved in these cases acted within the scope of their employment, the defendant’s porter must be held to have so acted here. This conclusion is strengthened by cases in other jurisdictions dealing with a railroad company’s liability for the loss of articles or luggage intrusted to their porters or “ red caps ” as the passenger was about to board a train. In Franklin v. Southern Pacific Railway Co. (203 Cal. 680; 265 Pac. 936 [1928]) the plaintiff, about to board the defendant’s train, handed her bag to the defendant’s porter to carry it into the train. The bag was never returned to her. She brought a suit for the loss, and the Supreme Court of California affirmed a judgment in her favor. In Booker v. Pennsylvania Railroad Co. (82 Penn. Super. 588 [1924]) the plaintiff, about to board the defendant’s train, handed his bag to a porter in the defendant’s employ, to be brought onto the train. The bag was never delivered to the plaintiff. A judgment in the plaintiff’s favor for the loss of the bag was upheld. In Great Western Railway Co. v. Bunch (L. R. 13 App. Cas. 31 [1888], affg. 17 Q. B. Div. 215 [1886]) the defendant’s porter undertook to carry the plaintiff’s baggage onto the defendant’s train. The baggage was lost. It was held that the defendant was liable for its loss. In each of these cases it was urged, as does the defendant here, that the porter was the passenger’s servant in helping him onto the train and that he was not the employee of the railroad company for that purpose. In each instance that argument was rejected. I find no authority in this State or elsewhere to support a different conclusion. Nor does it alter the liability of the defendant that the passenger tips the porter for so helping him. In the Booker Case *456(supra) the court said: “ It was not pretended that the railroad company advertised or informed the traveling public that it had engaged a number of trusted men whom it was prepared to furnish to passengers for employment by them as personal servants to assist in carrying their hand luggage for reasonable compensation. The money paid by the passenger was not compensation which the porter could have demanded or sued for in an action, but was rather a gratuity or tip which she was not bound to give and which the porter could not have recovered in an action of assumpsit if the passenger had not seen fit to give it. The fact that a traveler gives a tip to a porter for courteous service in the carriage of Jus hand luggage does not make the porter Ms servant for whose negligence he is responsible any more than a tip given to a bellboy in a hotel, to a waiter in a restaurant, or to a hatcheck employee, changes the status of their respective employment. Nor does the fact — if such is the case — that the railroad company does not pay its employees while they are ‘ portering only/ but that their sole source of revenue in such circumstances is the tips which they receive from passengers, negative the continuance of their employment while acting as porters, or relieve the employer of responsibility for their acts witMn the scope of their employment. If a waiter employed by a hotel or restaurant agrees to work without compensation from Ms employer, relying on the tips which he anticipates he will receive from the customers, he is none the less in the employ of the hotel or restaurant, and does not become the servant for the time being of each and every customer upon whom he may wait, nor could he sue the customer for compensation upon a <mask> if no tip was forthcoming. It is well known that hatcheck employees are frequently not only not paid by the hotel or restaurant where they are employed, but that in some instances large sums of money are paid for the concession, but tMs does not make the hatcheck employee the servant of the patron, who may or may not give Mm a tip.” (See, also, Southern Pacific Co. v. Maloney, 136 Fed. 171.)


Ordinarily the claim of a party closely related to the deceased will be closely scrutinized by the court, the presumption being that the services were rendered through love and affection and not for pay. The services of this claimant, however, are not such services as one would ordinarily expect to be performed, even by a blood relative, without proper remuneration and reimbursement. Claimant, according to the evidence herein, relied on the statements of the deceased to the effect that claimant would be compensated by a gift by will. The fact that there was a failure to so provide does not bar claimant from recovery. The agreement, once established, is enforcible. Recovery may be on the basis of <mask>. (Matter of Aldridge, 135 Misc. 442; Matter of Riccio, 24 A D 2d 483.)


The fee of the attorneys for the three legatees residing in the Soviet Union is hereby determined on a <mask> basis and not upon the alleged agreement concerning which no proof has been offered (Matter of Herz, 14 Misc 2d 1005; Surrogate’s Ct. Act, § 231-b). The amount of their fee for legal services rendered is fixed in the sum of $175 to be apportioned as follows: $75 to be paid out of the share of Shandra Viktorovna Natalia, also known as Alexandra Viktorovna Torsky; $50 to be paid out of the share of Victor Kapitonovich Torsky, and $50 to be paid out of the share of Lydia Georgievna Kardinalovskaya.


Plaintiff, as owner of a business for the servicing of neon signs, entered into two contracts with the defendant whereby, for a stated monthly charge, he agreed to replace defective or broken neon tubes, and also to perform other maintenance services in connection with defendant’s signs. Insofar as these contracts obligated plaintiff to replace parts which he had not manufactured or sold they are contracts of insurance, and are unenforcible since plaintiff was not licensed to do an insurance business. (Insurance Law, §§ 40, 41; cf. Automobile Ins. Co. v. Barondess, 107 Misc. 513; 1 Richards on Insurance [5th ed.], § 7.) Plaintiff’s obligation was not related to the quality or efficiency of an article made or sold by him (Ollendorff Watch Co. v. Pink, 279 N. Y. 32) but was the assumption of a fortuitous risk and constituted “ doing an insurance business ’ ’ as defined in section 41 of the said statute. .(See 1949 Atty. Gen. 153.) However, inasmuch as the contracts herein were merely malum prohibitum plaintiff should not ■be precluded from prosecuting his claims in <mask>.


The attorney for the executors requests a fee of 40% of the recovery, which fee is to include his own legal services, the services of other counsel engaged to assist him and the services of the attorney in the test case. The court fixes the fee upon a <mask> basis which, under the circumstances, is found to be one third of the amount recovered.


*759Based upon the evidence adduced at trial, the court did find the necessary elements constituting a basis for recovery under a theory of <mask>: (1) an agreement to perform transcription services in good faith; (2) acceptance of the service; (3) a reasonable expectation for payment for services rendered; (4) reasonable value for services performed. (See Precision Founds. v Ives, 4 AD3d 589 [3d Dept 2004].)


Claimant maintained that in accordance with the above-quoted paragraph 4 of the information for bidders, the New York State Thruway Authority could have charged the contractors for the engineering charges during the extensions granted. The failure to so charge, according to the claimant, constituted a breach of contract entitling it to recover on the basis of <mask> in the event the court determines that there is no basis for recovery pursuant to its agreements.


The right of a substituted attorney to an immediate fixing of his fee, conditioned upon his being discharged "without cause”, is restated in Brill v Chien Yuan Kao (61 AD2d 1000, 1001, supra) as follows: "Where an attorney retained for a specific purpose under an express contract is discharged without cause before completion of the agreed-for services, the attorney’s right to recovery is limited to a cause of action in <mask> for services rendered up to the time of the *894discharge (Martin v Camp [219 NY 170], supra).” (Emphasis supplied.)


Pacific Bay's challenge to the Claims Settlement Practices regulation is based on a faulty premise. Pacific Bay claims that Blue Shield, relying on Orthopedic Specialists, supra , 228 Cal.App.4th 644, 175 Cal.Rptr.3d 295, asserted it could "arbitrarily specify" in its EOC that claims of "noncontracted, nonemergent providers shall not be paid, period." However, Blue Shield makes no such claim. Instead, Blue Shield cites Orthopedic Specialists , contending that case dispelled the "notion that disallowing <mask> recovery for non-contracted, non-emergency providers, who cannot allege that the plan requested or benefited from the services, is unfair to the provider[.]"


An interesting contention presented by counsel for the administrator is that, the applicable provision of section 31 of the Personal Property Law (subd. 7), having voided the alleged oral agreement to bequeath a legacy, likewise, also bars the award of any <mask>. It is true that the instant case does involve the'issue as to whether, in an instance dealing with an alleged contract (as distinguished from quasi-contract), unenforcible because of a provision of the Statute of Frauds, even though the claimant has proceeded on the theory of an express contract, her claim, to the limited extent of a quantum meruit, may be recognized and allowed. Oases, generally of this type, dealing with the above-mentioned statutory provisions of section 31 of the Personal Property Law (subds. “ 1 ”, “ 7 ”) and cited in this connection are Matter of Quigley (179 Misc. 210); Matter of Ditson (177 Misc. 648); Matter of Block (258 App. Div. 342); Laing v. Mallory (277 App. Div. 824); Meltzer v. Koenigsberg (99 N. Y. S. 2d 143, affd. 277 App. Div. 1050, affd. 302 N. Y. 523); Bayreuther v. Reinisch (264 App. Div. 138, affd. 290 N. Y. 553); Matter of Lettner (112 N. Y. S. 2d 540); Matter of Douglas (169 Misc. 716, affd. 256 App. Div. 1070) and Kenny v. Brieger (196 Misc. 85).


The first issue presented to the court is whether rule 806.9 applies to this case, though the period of suspension has expired. Rule 806.9 provides in pertinent part: "(b) Compensation. A disbarred, suspended or resigned attorney may not share in any legal fee for legal services performed by another attorney during the period of his removal from the bar, but he or she may be compensated on a <mask> basis for legal services rendered and disbursements incurred prior to the effective date of removal. In the absence of agreement, the amount and manner of payment of such compensation and disbursements shall be fixed by the court on application of either the disbarred, suspended or resigned attorney or the new attorney, on notice to the other, as well as on notice to the client. Such applications shall be made at special term of the court in which the action is pending, or at a special term of Supreme Court in the county in which the moving attorney maintains his office if an action has not been commenced. In no event shall the combined legal fees exceed the amount the *932client would have been required to pay had no substitution of attorneys been required.”*


In its counterclaim RHS demands an accounting by plaintiff with respect to the funds which have accumulated since his resignation. Since the parties are in a fiduciary relationship and no misconduct on the part of RHS has been proven, it is entitled to an accounting (see 1 NY Jur, Accounts and Accounting, § 20). At issue are the sums received by plaintiff *459from the Hampton Medical Center and the East Hampton Medical Group and the funds held in escrow by the Southampton Hospital. Plaintiff was entitled to his salary from RHS for the 90-day period following his resignation and is entitled to remuneration on a <mask> basis for services subsequently rendered but he must account for all sums received. Since the record is insufficient for a determination by this court, the accounting itself must be the subject of a reference.


When a settlement was not reached on SFTC's unpaid account, on October 15, 2013, Minsa sent a demand letter to SFTC for the outstanding balance of $110,238.54. When payment was not made, Minsa filed suit on December 5, 2013. Minsa alleged claims for suit on sworn account, breach of contract, <mask>, and promissory estoppel. In addition to seeking recovery of the balance of the account, Minsa also sought recovery of reasonable and necessary attorney's fees. SFTC generally denied Minsa's claims, and in May 2014, asserted its own counterclaims for breach of contract, breach of express warranty, breach of implied warranty of fitness for a particular purpose, and violation of the Texas Deceptive Trade Practices Act.


This second suit was brought to trial before Judge Wood-buff, when the judgment record in the former suit was produced and read in evidence, and it was thereupon admitted by the counsel for the parties, that no change in the possession or occupation of the premises took place after the eviction alleged to have occurred prior to February 1st, 1848; and that the only question to be tried and determined herein was, whether, notwithstanding the tenant was evicted by the landlord from a part of the premises hired by the tenant for one year, by agreement, not under seal, the landlord may (if the tenant voluntarily continue to occupy the residue for-*210the balance of the year) recover on a <mask> a reasonable compensation therefor, and notwithstanding the former verdict and judgment; and whether, notwithstanding the continuance' of such eviction, the landlord might not recover at least a reasonable compensation for such voluntary use and occupation of the residue from the 1st day of February, 1848, to the 1st day of May, 1848.


The cause of action in <mask> requires a showing of “a plaintiffs performance of services in good faith, acceptance *1292of those services by a defendant, an expectation of compensation and proof of the reasonable value of the services provided” (DerOhannesian v City of Albany, 110 AD3d 1288, 1292 [2013], lv denied 22 NY3d 862 [2014]; see Thomas J. Hayes & Assoc., LLC v Brodsky, 101 AD3d 1560, 1561 [2012], lv denied 21 NY3d 851 [2013]). The complaint alleges that plaintiff acted in good faith and in the expectation of compensation in making the previously-discussed contributions to the business, that defendant accepted its services and contributions, and that plaintiff has been damaged in the amount of the reasonable value of its contributions. Plaintiff further submitted the affidavit of its principal (see CPLR 3211 [a] [7]; Leon v Martinez, 84 NY2d 83, 88 [1994]), alleging that plaintiff contributed more than $200,000 toward the business as well as all of the knowledge, labor, equipment and other resources necessary for its development, that a substantial amount of processed material that it had paid to create remained on the property when plaintiff was locked out in 2011, and that defendants have continued to benefit from plaintiffs contributions thereafter by selling materials from the business without compensating plaintiff accordingly. Thus, despite defendants’ contention that plaintiff’s services were performed primarily for its own benefit, we agree with Supreme Court that the complaint states a cause of action in quantum meruit (see Venture Silicones, Inc. v General Elec. Co., 14 AD3d 924, 925 [2005]; see also Goldstein v Derecktor Holdings, Inc., 85 AD3d 728, 728-729 [2011]).


The proof of claim presented to the administrator by the claimant enumerates the character of the services rendered to the decedent, and amply justifies a recovery upon <mask> for the services rendered at the request of the decedent. The claimant could recover by proving the express contract or she could recover upon a quantum meruit when the special promise was not established, but the evidence in fact showed a rendition of services under circumstances which implied an agreement to pay therefor. Matter of McMillan, 167 App. Div. 817; Sturtevant v. Fiss, Doerr & Carroll Horse Co., 173 id. 113; McKeon v. Van Slyck, 223 N. Y. 392; Ritchie v. Bennett, 35 App. Div. 68.


First: On contract: No action against S. E. P. Realty Corp. for commissions is stated. It does not allege performance of conditions precedent, either in the conclusory form permitted by rule 92 of the Rules of Civil Practice, or in ultimate fact form. The allegations that the prospective vendee made an offer to plaintiff exceeding the amount which S. E. P. Realty Corp. desired does not show that he brought the minds of the vendor and vendee to an agreement. (Sibbald v. Bethlehem Iron Co., 83 N. Y. 378.) Nor does he show a claim for <mask>. The alleged terms of the brokerage contract is “to employ the plaintiff to procure a purchaser for the said property ”.


The complaint does not plead that plaintiff was a duly licensed home improvement contractor during the performance of defendants’ construction project, as required under CPLR 3015 (e). Plaintiff concedes that it was an unlicensed home improvement contractor during the project (Strauss opp aff ¶ 5), which is in violation of section 20-387 (a) of the Administrative Code of the City of New York. “[P]ublic policy prohibits an unlicensed home improvement contractor from recovering for breach of contract or in <mask>.” (Matter of Metrobuild Assoc., Inc. v Nahoum, 51 AD3d 555, 556 [1st Dept 2008].) Therefore, plaintiff “cannot recover any further payments from the [defendants] either under the contract or in quantum meruit, and it forfeited the right to foreclose a mechanic’s lien.” (Matter of Ashmawy v L.I. Dock & Bulkhead Corp., 251 AD2d 500, 501 [2d Dept 1998].)


No showing is made or attempted to be made that 24% — or 20% — of the aggregate shares of these distributees is a reasonable fee for services rendered (cf. Mailer of Geiger, 7 N Y 2d 109, 112). Nevertheless it is argued that the reasonable value of the services performed is at least equal to the amount specified in the agreement with the forwarding “ law firm”. However, on the oral argument of this application it was conceded that the petitioning firm cannot now recover upon the afore-mentioned alleged agreement, which has never been produced, but must be compensated upon a <mask> basis (Matter of Chabanuk, N. Y. L. J., June 25, 1964, p. 17, col. 2; Matter of Hers, 14 Misc 2d 1005, 1006-1007; Matter of Torsky, 36 Misc 2d 101, 103; cf. Matter of Bargel, 5 Misc 2d 657, affd. 7 A D 2d 645, mot. for lv. to app. den. 5 N Y 2d 710).


But it does not follow that the plaintiff cannot have recovery. There is a second cause of action which seeks recovery on a <mask>. The contract, which is unenforcible by reason of the statute, is a nullity and non-existent in lav/. It is conceded that services were actually rendered by the plaintiff in procuring this tenant for the defendant. Although the extended term was for five years when the arrangement that was made through the efforts of the plaintiff as broker provided for an extended term of ten years, it seems to be conceded that an option of at least five years was contemplated from the beginning. Mr. Gehrung, the chief witness for the defendant, testified that the provision for ten years instead of five was probably a mistake in the drawing of the lease. It was not questioned on the trial that the five-year extension was made possible by the services of the plaintiff. The services rendered were beneficial to the defendant. It does not appear that they were contemplated to be rendered as a gratuity. In fact, there is a strong inference throughout that the defendant seeks to escape liability only under the Statute of Frauds. But where services have benefited a person who cannot be held hable because his promise was oral, the statute will not be permitted to be used offensively to overthrow a meritorious plaintiff and thus go beyond its purpose of acting merely as a shield against fraudulent claims. Recovery can be had on quantum meruit. (27 C. J. 363, § 441.) There is testimony on behalf of the plaintiff that the amount of the bill for this five-year term at one and one-half per cent of the aggregate rentals “ is the fair and reasonable value for leasing property of that kind at the time in question.” That evidence was not refuted nor was there any inclination on the trial to go into that phase of the case.


It is therefore necessary now to pass to the relief sought by the notice of motion in the alternative. First, defendant seeks dismissal of the second cause of action for legal insufficiency. While It is permissible to join in one complaint counts on contract and for <mask>, in this instance in the second *367cause plaintiff reiterates all of the allegations of the first cause on contract and then alleges that at defendant’s special instance and request it performed work, labor and services and furnished material of a stated agreed price and reasonable value upon which a stated sum was paid, leaving due and owing a sum which is the same sum claimed to be due upon the first cause of action. Since the contract forming part of the second cause is upon the basis of the pleadings presumed to be valid, a cause for quantum meruit is not stated.


The parties never signed a written fee agreement. To satisfy the Statute of Frauds (General Obligations Law § 5-701 [a] [10]), a memorandum "must contain expressly or by reasonable implication all the material terms of the agreement, including the rate of compensation if there has been agreement on that matter” (Cohon & Co. v Russell, 23 NY2d 569, 575). Here, neither the material terms of any agreement nor, clearly, a rate of compensation was contained in defendants’ letters to plaintiff. Plaintiff’s first count for breach of contract was properly dismissed. In an action in <mask> *425however, for the reasonable value of services, "a sufficient memorandum need only evidence the fact of plaintiffs employment by defendant to render the alleged services” (supra, at 575-576). The obligation to pay reasonable compensation is then implied (supra, at 576). Thus, in Blye v Colonial Corp. (102 AD2d 297), where the only writing signed by a defendant reflecting the agreement claimed by plaintiffs was a letter which discussed some bases for commissions as " 'an area for future discussion’ ” (supra, at 298) but which did not express a firm agreement as to the amount of plaintiffs’ compensation, this Court concluded that the letter adequately evidenced the fact of plaintiffs’ employment to act as finders, and their action in quantum meruit was not precluded (supra, at 298-300). The one letter was "buttressed” by a letter from one defendant to another discussing remuneration of plaintiffs (supra, at 299). In Dunlevy v Tinsley (178 AD2d 373, lv denied 79 NY2d 757), where plaintiff had also submitted sufficient correspondence to meet the statutory requirements, this Court noted the further finding of the motion court that the evidence demonstrated that there was no intention to render gratuitous services (see also, Shapiro v Dictaphone Corp., 66 AD2d 882, 884-885). In the instant case, defendants’ letter to an entity in the business of brokering licensing agreements, which letter authorized that entity to approach certain manufacturers, could hardly have been an authorization contemplating gratuitous services.


Garmer contends that the trial court erred because <mask> recovery of attorney's fees is available in the absence of an enforceable contractual agreement, under the express qualification to the general rule which provides that "the acceptance of or acquiescence in the services rendered may raise an implied promise to pay therefor." Id. Garmer argues the Estate knowingly and eagerly received and accepted its work product, moved to incorporate it into its own case and used that work product for its own benefit to move quickly to settlement. According to Garmer, if it had not been for its efforts in the federal litigation, the Estate's claims in state court against Paducah Nissan and Dedra, and the claim for punitive damages against Jamison, would have been barred by the statute of limitations. See Kentucky Revised Statutes (KRS) 413.180 (requiring an action for wrongful death to be brought within one year of the qualification of the personal representative).


Whether or not the plaintiff might have a cause of action based on <mask> under proper allegations of fact, we cannot and do not now determine. There is only before us an alleged cause of action based upon a purported contract. There being no contract pleaded, there is no cause of action stated, either on the contract as such, or on the theory of a joint venture evidenced by such writing.


In its reply brief, Pacific Bay finally addresses the elements of a <mask> cause of action and the allegations in the complaint. Quantum meruit permits the recovery of the reasonable value of services rendered. (Palmer v. Gregg (1967) 65 Cal.2d 657, 660, 56 Cal.Rptr. 97, 422 P.2d 985.) To recover in quantum meruit, the "plaintiff must establish both that he or she was acting pursuant to either an express or implied request for such services from the defendant and that the services rendered were intended to and did benefit the defendant"; further, the defendant must have " 'retained [the]


The rule goes to that extent. But it does not go to the extent that, where plaintiff asserts a special promise for a monthly wage, and defendant asserts a profit-sharing agreement, the jury may still give plaintiff a <mask>, when they do not believe what he says about the special promise, and choose to believe what defendant asserts. The claims of a special promise and a quantum meruit are inconsistent. (Herrmann v. Cluett, Peabody & Co., Inc., 127 Misc. 54.) This inconsistency is tolerated by the adjudicated cases only up to the point of submission to the jury. To carry it further, in a case like this, would be to stretch an inconsistency into an absurdity. The jury, at bar, had to decide whether the contract contemplated a salary or a share of the profits. If it was not a salary, it necessarily must,have been what defendant claimed. Under those circumstances, to give the jury the right to say that, if the contract was not for a salary nor for a share of the profits, they could still give the plaintiff the reasonable value of his services, would be to submit to them a fictitious issue. On reflection, I think the result would have been the same if plaintiff went to the jury on a quantum meruit. But I have been cited no authority, and I can find none, which holds that a plaintiff may go to the jury on both a special promise and a quantum meruit. To my mind, such a rule would be entirely out of reason.


A prior motion for the same relief addressed to the first amended complaint was granted by this court by decision dated August 6,1956. In that decision, permission to serve an amended complaint repleading the second cause of action on the theory of <mask> was granted. The order entered thereon, however, extended permission to serve an amended complaint without limitation.


In support of the balance of the relief requested by the petitioners, the attorney-fiduciary has submitted an affidavit to the court which indicates that the law firm, of which he is a *948partner, performed professional services for the deceased, approximately one year prior to his death, during the period 1980 through the beginning of 1982. Inasmuch as these services were performed without a retainer agreement between the parties, the value of counsel’s labors must be determined on a <mask> basis. (See, 27 Carmody-Wait 2d, NY Prac § 159:34; Estate of Goldman, NYLJ, Feb. 6, 1979, at 13, col 2.) In this regard, the court notes, at the outset, that counsel’s claim is based upon approximately 200 hours of time expended, at the rate of $125 per hour. However, while the time spent is the logical starting point in analyzing an application for counsel fees (Matter of Chandler, NYLJ, Mar. 29, 1978, at 16, col 3; Matter of Kentana, 170 Misc 663), it is the least important part of the calculus in assessing the reasonableness of the sum requested. Indeed, in the court’s opinion, more significant to its determination are such factors as the difficulties involved in the matter, the nature of the services rendered, the amount involved, the professional standing of counsel and the results obtained. (Matter of Freeman, 34 NY2d 1 [1974]; Matter of Potts, 123 Misc 346, affd 213 App Div 59, affd 241 NY 510 [1925].)


Accordingly, upon reargument the motion is granted to the extent of dismissing the second cause of action for insufficiency, and the motion is in all other respects denied with leave to plaintiff to serve an amended complaint in which, in addition to the first cause of action on contract, it may state, upon appropriate allegations, an additional cause in <mask>.


In a proper case a provision in a contract which provides for a breaching party to pay the nonbreaching party’s attorney’s fees may not be unconscionable, but, on the other hand it very well may be; and, when the precise issue of value has been directly presented, fixation by the courts of the "reasonable value of attorneys’ fees” on a <mask> basis, has been required. To hold otherwise would be contrary to public policy because it would actually amount to the enforcement of a penalty (Matter of Mead v First Trust & Deposit Co., 60 AD2d 71, citing Equitable Lbr. Corp. v IPA Land Dev. Corp., supra; Scheible v Leinen, 67 Misc 2d 457, 460; Franklin Nat. Bank v Wall St. Commercial Corp., 40 Misc 2d 1003, affd 21 AD2d 878).


A number of cases have followed Goldstein and Jeffry . (See, e.g., Cal Pak Delivery, Inc. v. United Parcel Service, Inc. (1997) 52 Cal.App.4th 1, 16, 60 Cal.Rptr.2d 207 [attorney not entitled to fees after he offered to dismiss a class action in return for a personal payment to him of millions of dollars]; A.I. Credit Corp., Inc. v. Aguilar & Sebastinelli (2003) 113 Cal.App.4th 1072, 6 Cal.Rptr.3d 813 [law firm not entitled to fees after it helped a new client enforce a judgment against a former client by assisting the new client in locating and pursuing the former client's assets].) Another case, Fair v. Bakhtiari (2011) 195 Cal.App.4th 1135, 125 Cal.Rptr.3d 765 (Fair ), noted that attorneys are not entitled to fees where the ethical violation is "one that pervades the whole relationship." (Id . at p. 1150, 125 Cal.Rptr.3d 765.) Fair affirmed the trial court's denial of <mask> recovery where an attorney's conduct "constituted not merely a technical rule violation, but the breach of Fair 's fiduciary duty to" his clients. (Id . at p. 1151, 125 Cal.Rptr.3d 765.)


The court is aware of and has examined the papers underly*632ing the decision and order of another Part of this court in Double R. Home Improvement Corp. v Frank (Sup Ct, Westchester County, May 29, 1991 [index No. 15551/90]), relied on by the defendants. That was actually an action to foreclose a contractor’s improvement lien and the contractor’s failure to fully comply with section 11 of the Lien Law was the ratio decidendi for the complete dismissal. The concluding statement in that dismissal decision, "Finally, the failure of plaintiff to comply with the requirements of General Business Law § 771 et seq. precludes its recovery in contract or <mask> (cf. Millington v. Rapoport, 98 AD2d 765).”, is seen and read by this court to be obiter dicta not constituting persuasive authority for the dismissal claim here. Moreover, an examination of the appellate decision in Millington reveals that it does not, respectfully, constitute any ground for dismissal under the General Business Law; it was the failure of the contractor to be licensed by New York City under the Administrative Code of the City of New York, which failure actually forbids performing or obtaining an unwritten home improvement contract, that led to the dismissal.


In addition to concerns about defendants’ own unclean hands, the court, as explained in the previous section, cannot as a matter of law conclude that no issues of fact exist regarding plaintiffs’ conduct. “Where a litigant has himself been guilty of inequitable conduct with reference to the subject matter of the transaction in suit, a court of equity will refuse him affirmative aid.” (Levy v Braverman, 24 AD2d 430, 430 [1st Dept 1965]; see also Janet O. v James O., 13 Misc 3d 1225[A], 2006 NY Slip Op 51985[U], *3 [Sup Ct, NY County 2006] [stating party cannot seek equitable relief with unclean hands].) Because the court *195finds questions of fact about plaintiffs’ conduct, it refuses to dismiss their causes of action for unjust enrichment and <mask> for work at Taft. Accordingly, the court denies defendants’ request to dismiss the remaining part of the second and third causes of action because of plaintiffs’ allegedly illegal conduct.


To prevail on a claim for <mask> , the Law Firm must demonstrate: "(1) that [it] provided the [Defendants] services at the [Defendants'] request or with their acquiescence; (2) the services [provided] were of a certain and reasonable value; and (3) the [Defendants] refused to pay for such services after demand" by the Law firm. Moran v. Hubbartt , 178 S.W.3d 604, 609 (Mo. App. W.D. 2005) (citation omitted). The trial court analyzed the Law Firm's petition and affidavit and determined that all of the elements were met for both quantum meruit claims.


The Administrative Code does not expressly state that the licensing requirement applies only to contracts involving residences and dwelling places (see Administrative Code of City of NY § 20-386 [2], [6]) within New York City. However, we conclude, based on both the statutory text and the legislative history of the home improvement licensing law, that the licensing provisions apply only to contracts involving residences and dwelling places within the City. Notably, both Mayor Lindsay, who signed the measure into law, and the then-New York City Commissioner of Licenses (Joel J. Tyler) observed that the licensing provisions were designed to protect New York City homeowners; the provisions did not regulate the work of contractors for work performed outside the five boroughs (see remarks by Mayor Lindsay at public hearing on Local Laws, Apr. 22, 1968, at 1; remarks by New York City License Commissioner Tyler at hearing of New York City Council, Committee on Housing, Jan. 29, 1968, at 3). Our construction of the home improvement licensing law is consonant with the well established principle that a contractor who is unlicensed in the municipality where the work is performed is barred from recovering under a home improvement contract or in <mask> (see Price v Close, 302 AD2d 374, 375 [2003]).


General Business Law § 771 (1) provides that "Every home improvement contract subject to the provisions of this article, and all amendments thereto, shall be evidenced by a writing and shall be signed by all the parties to the contract.” A long list of required terms then follows. Under the definitional portion of section 770, a contract in excess of $500 for landscaping, masonry and associated services and labor falls within article 36-A. Hence, there is no question that the agreement here should have been in writing. The more pertinent inquiry, however, is whether the lack of such a writing precludes any and all recovery. The court concludes that lack of a written contract does not bar all recovery under article 36-A of the General Business Law and that damages are recoverable, if not under the agreed terms, then at least under theories of <mask> and unjust enrichment.


The plaintiff contends that he is entitled to recover in <mask> for the value of services he rendered to Zev Melamid and his corporation, Town Travel Corp. (hereinafter the defendants), in connection with the defendants’ failed attempt to start a cargo airline. The Supreme Court deter*576mined that the plaintiff was not entitled to recover on his quasi-contractual claim because he had alleged the existence of an express contract (see, Clark-Fitzpatrick, Inc. v Long Is. R. R. Co., 70 NY2d 382, 388; Recon Car Corp. v Chrysler Corp., 130 AD2d 725, 730). The court concluded, in any event, that the plaintiff failed to establish a quantum meruit claim.


Subdivision 10 of section 31 of the Personal Property Law does not make illegal a contract for the rendition of services in the sale of a business by anyone other than a duly licensed real estate broker, real estate salesman, auctioneer or attorney at law. It only makes an express agreement to pay for such services unenforcible. The remedy in <mask> is not barred. If Graymount v. Schlemmer (204 Misc. 667) holds to the contrary, I am not in agreement with it. In any event, the facts of that case are not disclosed in the opinion.


In response to these motions, the City defendants cross-move to dismiss the proposed class action complaint on the grounds that plaintiffs have failed to exhaust administrative remedies, the complaint is barred by the Statute of Limitations, the complaint is barred by laches, and the claims for unjust enrichment and <mask> fail as a matter of law.4 Defendant Brian J. Wing, Acting Commissioner of the New York State Department of Social Services (State DSS), cross-moves to *30dismiss the proposed complaint also on the ground that plaintiffs and proposed intervenors have failed to exhaust their administrative remedies, and otherwise joins the City defendants in opposing the requests for class certification and injunctive relief.


The recital of consideration in a negotiable instrument creates an inference of the existence of consideration and prima facie evidence of the fact of consideration but any such inference is here rebutted by the evidence of the alleged circumstances under which the paper was obtained. Inasmuch as the claimant undertook to prove consideration, the sufficiency of the evidence so offered is the test of the adequacy of consideration and a deficiency in the proof is not to be provided by inference or presumption. (Dougherty v. Salt, 227 N. Y. 200; Severance v. Severance, 269 N. Y. 523; Matter of Tierney, 44 N. Y. S. 2d 375, 378, affd. 268 App. Div. 913.) The claimed consideration, consisted of voluntary acts of kindness, unsolicited by the decedent and performed by the objectant without expectancy of compensation upon either a contractual or <mask> basis. It is beyond dispute that the objectant lacked either talent or training to render services compensable in the amount stated in the alleged note although it is equally beyond doub t that his undisclosed purpose in associating with *405the decedent was to benefit himself. The court does not accept as credible the testimony of a witness who testified on the objectant’s behalf as to the delivery of the note to the objectant, but if such testimony were believed it would prove nothing more than delivery. Mere friendly acts do not constitute consideration and the defense that the purported note was without consideration is sustained. (Blanshan v. Russell, 32 App. Div. 103, affd. 161 N. Y. 629; Matter of Green, 247 App. Div. 540, 543.)


The legislature should amend the various uniform local court acts to make it clear that judges in small claims cases can consider equitable claims, counterclaims and defenses32 (e.g. laches, <mask>,33 clean hands34) only in the context of awarding a money judgment. This could be accomplished by adding the following sentence to the end of section 1804 in the various local court acts:35


The referee found for the plaintiff upon the facts alleged in the complaint, but decided that as it appeared that the contract in suit had not been fully performed by the plaintiff, and he had not shown a sufficient legal excuse for abandoning it, no recovery could be had upon a <mask> ; that as the time fixed by the contract for its performance had been waived, the plaintiff was bound to notify the defendant of his intention, and demand performance upon his part within a reasonable time. This precise point was decided in Lawson v. Hogan (93 N. Y. 39), where a contract similar in character in relation to the same premises was in dispute.


*413It appears from the above-cited study that the intendment of the statute was coverage of those commonly known as “ business brokers ’ See page 621 of the 1949 study cited, wherein the statement is made that “ Other claimants of commissions, such as insurance brokers, commission merchants, auctioneers and others, seem not fairly within the scope of the proposal studied; their claims are more likely to arise out of a regular course of dealing, and any legislation requiring written memoranda would have to fit into a somewhat different framework of existing New York statutes.” In 1964, the section was amended to ‘ ‘ make clear that no recovery on a <mask> theory ” would be permissible on a contract within the statute, and while so recommending, the Law Revision Commission indicated that no distinction should be drawn between ‘ ‘ brokers ” and “ finders ” in determining the applicability of the statute. (See N. Y. Legis. Doc., 1964, No. 65[F]), where recommendation was made for an amendment of the statute to include, expressly, claims for commission 6 ‘ for services rendered merely in bringing a buyer and seller together ”.)


The plaintiff did not complete the work and sue for the purchase price. The preparation of tlie drawing had cost thirty-five dollars, iind it sued on a <mask> for these services, and the amount was conceded on the trial. Inasmuch as the defendant did not *328decline to accept because of any dissatisfaction with the work itself,, but did in effect refuse to carry out the contract, the plaintiff at least could maintain an action to recover the actual value of the-services rendered. The refusal of the defendant to perform amounted to a breach of the agreement and; was adequate warrant for the-plaintiff to treat it as terminated and sue on a quantum meruiL (Howard v. Daly, 61 N. Y. 362; Waldron v. Hendrickson, 40 App. Div. 7; Cowen’s Treatise [7th ed.], §§ 217,794.) As was said in the valuable treatise of Judge Co wen, at section 794: “ Where-one party to.a contract gives notice to the other that he shall not perform it, performance by the one receiving such'notice is unnecessary, and he may recover the damages he has sustained up to that-time.”


Whether or not these observations of the judge in vacating the order concludes the question before me as res judicata, the fact is that the order for counsel fees was vacated and upon the husband’s own application. It is not necessary to go so far as to say that the situation is the same as it might have been if plaintiff’s attorney had applied for no counsel fees at all, in which event, he would be free to pursue an independent action against the husband for services; but we can, I think, go so far as to say that because of the husband’s action in applying for and obtaining a vacatur of the order for counsel fees, he is in no position to interpose that order as a bar to the plaintiff’s right to recover on a <mask> basis (cf. Naumer v. Gray, 28 App. Div. 529).


In Walton v. Creditors, 3 Rob. (La.), 438, held: “A notary’s fees being fixed by the law, he can under no pretense demand additional compensation.” In this case the court said: “The lower court ruled that ‘evidence to establish a <mask> is entirely misplaced in relation to *117those official services for which a tariff is fixed by law.’ It does not appear to us that the court erred. If the fees allowed to notaries by law for services rendered by them be insufficient, they must seek relief by an application to the legislature for a new tariff or by resigning their offices. Courts of justice cannot countenance any other mode.”


Furthermore, in this case the discharged attorney already had collected money more than sufficient to cover the value of his services. He was seeking not to enforce his lien but to establish his right to retain what he had already collected. It was his client who was seeking to recover part of the counsel fees awarded and paid for which services had not been performed. Under those circumstances, she may not be barred from pursuing her plenary action for a money judgment binding on the attorney’s estate and capable of execution because the attorney had previously made application under section 475 to have the proper amount of his fees fixed on a <mask> basis. Section 475 is not an umbrella under which an attorney may seek shelter from the demands of a client for the return of excessive fees paid.


Under the circumstances by defendant’s own action the contract may fairly be considered divisible and performed to the extent of the first delivery and plaintiff entitled to recover according to its terms. As to the balance plaintiff would be entitled to a recovery in <mask>. It might well be that the reasonable value of the folders equalled the contract price but there is nothing in the record to indicate that it does.


In the complaint in this action, there is no such compliance with the provision of law referred to. The alleged <mask> is but a mere continuation of the preceding averment appertaining to the special contract, and is not in any proper sense the allegation of a separate and different cause of action. Taken by itself, as it must be, it does not contain facts sufficient to constitute a cause of action; and it must, therefore, to be available at all, have relation to- the preceding matter.


There would appear to be a close relationship between the statement of the court in the Long case and the surrounding circumstances and the relationship of the parties in the case before this court. In viewing the present situation as a whole, as the several evidentiary considerations are appraised in respect to their respective bearings in accordance with the applicable principles authoritatively established and binding on us, leaves a necessary legal basis for a recovery in this proceeding, a sufficiently established implied contract, somewhat short of minimum requirements. The evaluation of all the evidence is such that it cannot be said there is a preponderance sufficient to support the implication of a contract. Therefore, this court is of the opinion that the claimant, in the absence of an express agreement, is not entitled to recover on an implied contract and to be paid on the basis of <mask> for services alleged to have been performed and that the claim of Myrtle J. Basten, the claimant herein, should be dismissed.


In the case of Abbott v. Draper (4 Denio, 51), there was an oral contract for the purchase of land. After the purchaser had made some payments in goods under the contract, he sued the vendor for the value of the goods. That is, he repudiated the contract as void, and sought to recover the value on a <mask>. But the court said that “ as long as the vendor was ready to perform the contract on his part the vendee could not recall the payments which he had made under the agreement.” “ Every time a payment was made and received the parties virtually said, although the law will not enforce this contract, we will go on and carry it out.” This language is quoted and ■ approved in Thomas v. Dickinson (ut supra) ; and see Galvin v. Prentice (ut supra). Now, if we apply the principles to the present case, it may be said that every time that the plaintiff rendered and the defendant accepted services, they virtually said they would go on and carry out the contract. Thus they affirmed it down to the very last act done under the same; leaving nothing *152unperformed but a promise to pay for past services. And it will further be seen by this case of Abbott v. Draper, and similar cases, that one party is not allowed to repudiate the contract as void and sue on a quantum meruit, until the other party is in default. He cannot treat a contract iis void, under the statute of frauds, which the other party is willing to treat as valid. The default of the defendant is necessary to give the plaintiff an action as on a quantum meruit.


Pursuant to the Administrative Code of the County of Nassau (hereinafter the Administrative Code) § 21-11.2 anyone operating a home improvement business must be licensed. The appellant does not dispute that it did not have a license, but contends that it was not required to have one and that, in any event, its failure to obtain a license does not bar its recovery in contract or in <mask>.


The defendant herein argues that Breier v Government Employees Ins. Co. (supra) is controlling and requires dismissal of the complaint. Plaintiff, on the other hand, contends that this being a case for recovery in <mask> is the type of action the court alluded to in the aforementioned dicta, and, as such, is a case of first impression. The question presented herein, plaintiff argues, is whether the defendant insurance carrier should be allowed to be made whole by way of the reimbursement, when it was counsel’s efforts that produced this result. Plaintiff requests that it be granted summary judgment on its cross motion for one third of the reimbursement, or, in the alternative, that this matter be set down for a hearing to determine the reasonable value of plaintiff’s services.


Richard F. Braun, J. Plaintiff has sued both defendants in this action for foreclosure of a mechanic’s lien, and defendant Sabina Brandt Kelley for money damages for breach of contract, unjust enrichment, and <mask>. Defendants move to dismiss the complaint, pursuant to CPLR 3211 (a) (1), (3) and (7), for a discharge of the lien, pursuant to CPLR 3211 (a) (1), and sanctions, pursuant to CPLR 3126 and 22 NYCRR 130-1.1 (c).


Defendant-appellant Cybergenics engaged codefendant Kaleidoscope to produce television programming in connection with certain intellectual property owned by Cybergenics. Pursuant to the written agreement between Cybergenics and Kaleidoscope, the production costs were funded by Cybergenics and Kaleidoscope was paid a monthly retainer. Plaintiff, a film editor, was solicited by Kaleidoscope and its agent, codefendant Artisan, to work on the property. Plaintiff billed Kaleidoscope for these services. When the project was completed and plaintiff was not paid, it sued Kaleidoscope and Artisan for breach of express contract. Cybergenics was also sued, on the theories of unjust enrichment and <mask>. Civil Court denied Cybergenics’ dismissal motion for lack of proof that no benefit was conferred on it by plaintiffs services.


Plaintiff requests an undivided attorney’s fee based solely on <mask>, including a separate fee for the efforts expended in substantiating its claim to attorney’s fees. Plaintiff, as previously stated, is entitled to its counsel’s fees for bringing this cause of action for recovery of benefits pursuant to the New York State No-Fault Law in accordance with the Insurance Department regulations. In addition, plaintiff may recover reasonable attorney’s fees for time spent substantiating his fee for prosecuting the unpaid claims. This is a fee on a fee. He may recover for “efforts expended in addressing any legal issues which may be involved as well as time spent in assembling and presenting factual data to support the claim.” (Matter of Fresh Meadows Med. Assoc. [Liberty Mut. Ins. Co.], 49 NY2d 93, 99.)


" '[F]or purposes of certification, the proper inquiry is "whether the theory of recovery advanced by the plaintiff is likely to prove amenable to class treatment." ' " ( Hall , supra , 226 Cal.App.4th at p. 292, 171 Cal.Rptr.3d 504.) Kendall believes that the Agreement for Services lacks any valid price term, as a matter of pure contract interpretation, and instead, the Agreement for Services should not be permitted to make references to Charge Master billings. He invokes equitable principles of <mask> and suggests the court apply a flat percentage reduction from the gross Charge Master charges, to arrive at the reasonable value of the services rendered, through a comparison of the Charge Master rates either to the hospital's costs in providing services, or to the reimbursement rates for various categories of patients covered by other benefits plans. This approach would effectively place the burden on Scripps to prove the value of its services before billing for them.


It is thought by the plaintiff that there are cases in conflict with this view. They will be found to be cases where there was only a partial performance of a void contract and a refusal to perform fully. In Shute v. Dorr (5 Wend., 204), there -was an oral contract that a child sixteen years of age should serve until he was twenty-one for a specified sum. He left before that time. Of course, there could be no recovery on the contract. A recovery was had on a <mask>.


The Thompson case had to do with a written contract. Here we are dealing with work and services performed. If proven, a verdict based upon <mask> may be rendered. The recovery may be had upon quantum meruit for the value of services rendered, even though an expressed contract for the payment of the alleged services is not established, if the evidence shows the rendition of services under such circumstances as imply an agreement to pay therefor. (McKeon v. Van Slyck, 223 N. Y. 392, 399.) The claimant is only required to prove his case by a fair preponderance of evidence. (Caldwell v. Lucas, 233 N. Y. 248; Matter of Bayles, 108 Misc. 117; Matter of Otis, 126 id. 741; Matter of Moodie, 129 id. 853.)


Several exceptions to the introduction of testimony were taken, some of which seem to be well founded. It is true that the plaintiff alleged a <mask>. and that the answer denied it, but the theory upon which the plaintiff based his recovery was the compensation fixed by the statute, and had nothing to do whatever with the nature of the services, or with their value, but simply depended upon their rendition.


Contractors in breach of article 42 have been denied recovery on either theory (Buffoleno v Denning, 82 Misc 2d 472; Vegliack v Mazzella, 73 Misc 2d 90), although Vegliack may also be explained on the ground that the work was not authorized by defendant. While in accord with those decisions as to nonenforcement of the contract, Lindner Appraisal Corp. v Frewil Corp. (72 Misc 2d 1041) permitted a <mask> recovery measured, however, without "corporate profit”. Atkin v Hill, Darlington & Grimm (15 AD2d 362, 367, affd without opn 12 NY2d 940) teaches that "[legislative intent remains the touchstone” of the statute’s impact on the transaction. This requires consideration of the nature of the statute and *537the surrounding circumstances. Cases arising under comparable statutes are revealing.


The critical question here is what was intended by the agreement of the defendants to pay the plaintiff ‘ ‘ a retainer ’ ’ of $40,000. The issue cannot satisfactorily be answered on the basis of the writing relied upon or of the affidavits submitted to the court. ‘ ‘ Retainer ” could mean either a fee not only for the rendition of professional services, but also for the attorney’s taking the case, making himself available to handle it and refusing other possible employment, or it could have been intended as a word describing compensation solely for services to be performed. If the former, the plaintiff is entitled to recover for indebitatus assumpsit (as pleaded); if the latter, he may recover on <mask> (which he does not plead).


Defendant offered no evidence upon the trial; and, although the stipulation submitting the case to me was signed about three months ago, has not filed any brief. Just what the defendant’s claims in the premises are, I am not advised. Probably it considers itself fortified behind the cases of Crane v. Baudowine (55 N. Y. 256) and McGuire v. Hughes (207 id. 516). The principle established by those cases has been extended to the case of a *850hdspital (Homeopathic Hospital v. Chalmers, 94 Misc. 600; affd., 184 App. Div. 916), and doubtless a dentist would come within the same category as a physician or a hospital. The particular rule in McGuire v. Hughes (supra) is as follows (p. 519): “ The general rule, that, where a person requests of another the performance of services, which are performed, the law implies a promise by the former to pay their reasonable value, has no application in the case of a physician, rendering professional services to a third person, if the relation to the patient of the person, who requests them, be not such as imports the legal obligation to provide them.” Again (at p. 521) the court practically restates the same proposition in the following language: “ I am, therefore, of the opinion that it should be taken as the rule of law, too well settled upon authority to be now questioned, that a physician, in the absence of a special contract, may recover upon an implied agreement to pay for his services <mask>, when they have been rendered at the request of the patient, or of a person who, in the eye of the law, is regarded as being under a legal obligation to provide such professional services for the patient; such as a husband, or the parent of a minor child.” The dictum of this ease seems to be that in no instance will a promise to pay for the services of a physician, etc., be implied, unless the one requesting the service is under some legal obligation to provide the service requested; and the question is, therefore, presented as to whether the defendant was under any such obligation. In this connection we come upon a peculiar situation because, as subsequently understood, it transpires that the ice company was not in fact under obligation to take care of its employee, but it was apparently liable and Schmidt, the president of the company, supposed that it was liable, under section 13 of the Workmen’s Compensation Law. He, therefore, ordered the man cared for by Dr. Locke. The latter testified that he had general directions in all of defendant’s cases, to employ whatever help or assistance was necessary, and in pursuance of that authority he employed the plaintiff, this being a case for a dentist. He also informed Schmidt of the fact, shortly after and before much of the work had been done, and Schmidt raised no objection. Dr. Capron went on and completed his work and is now seeking his pay therefor. The insurance carrier will not pay, and, concededly, is not hable. The patient probably is not responsible financially and did not order the work anyway; and the only possible source of compensation is the defendant. It is doubtless true that, had Mr. Schmidt or Dr. Locke been aware of the true nature of the occurrence in which O’Connor received his serious injury, probably neither would have interested *851himself in the case. As it was and acting under a misapprehension, Mr. Schmidt called Dr. Locke and directed him to do everything possible for the injured man. Dr. Locke’s action in the case is due wholly and entirely to Mr. Schmidt’s order. Both acted in good faith. One of them must suffer, that is either Dr. Locke’s employee, the plaintiff, must go unpaid, or Mr. Schmidt’s company must pay him. It is a fundamental principle of law that, where one of two innocent parties must suffer, he must bear the burden whose act made the situation possible. In this case it was Mr. Schmidt’s act which started Dr. Locke and the plaintiff into action. He assumed that his company was liable; apparently it was; as O’Connor had sustained a severe injury by a fall while engaged in working for the Utica Ice Company. Under such circumstances, Mr. Schmidt employed the plaintiff, through Dr. Locke, and it seems to me only fair that he should pay him, for, otherwise, he must go unpaid.


Before finally disposing of this item, it is. necessary to consider respondents’ objection that the claimant was working elsewhere as a registered nurse during the various periods of time in question. This was quite well explained by the claimant and judicial notice may be taken of the wartime conditions and the effect this had upon employment of professional nurses. But, in any event, objectants are within their rights in questioning the value of the services. This is so whether claimant’s theory is a <mask>, or a non-implied contract. See Matter of Mason (134 Misc. 902, 906) where it is clearly stated that “ in either event only such recovery could be had as was commensurate with the value given and received ”, together with citations of supporting authorities.


With respect to those cases retained pursuant to an ordinary noncontingent fee retainer agreement, plaintiff is entitled to share in the legal fees earned by the partnership prior to his suspension on a <mask> basis (see, Nassau County Bar Assn Ethics Opn No. 83-5). Quantum meruit is defined "[a]s much as he deserved” (Black’s Law Dictionary 1408 [4th ed 1968]). Does plaintiff then deserve an hourly wage for work he actually performed on a file, or as a former partner, does he deserve something more? The court finds that he deserves something more.


Plaintiff now seeks to amend the complaint in order to add a second cause based on <mask>, for the fair and reasonable value of his services and to increase the amount of damages. Defendants having interposed the defense that plaintiff’s claim is barred by the Statute of Frauds, contend that the plaintiff may not add the quantum meruit theory or recover thereon in the event he is not entitled to recover on his cause for breach of contract — a contention which is without merit (Smith v. Kilpatrick, 305 N. Y. 66).


*763Respondents ’ contentions that the power to make such a contract lies exclusively with the respondent Mayor (Mount Vernon City Charter, § 65; L. 1922, ch. 490), or, in the alternative that petitioner’s claim, in any event, is one for <mask> which may require a hearing by the respondent comptroller to test the accuracy and justness thereof, are without merit. It is axiomatic that in construing statutory provisions, the spirit and purpose of the act and the objective sought to be accomplished must be considered. If the court were to accept said contentions, the general purpose, obvious duty and manifest policy of the Common Council to investigate public officers and public affairs could easily be defeated and obstructed.


Arthur M. Schack, J. *878After settlement of the instant case by plaintiffs incoming attorneys, Michael A. Zimmerman & Associates, EC., plaintiffs outgoing attorneys, Rovegno and Taylor, EC., move for an order to determine the division of legal fees between the incoming and outgoing attorneys. Mr. Zimmerman disputes Rovegno and Taylor’s motion, claiming that the outgoing attorneys were discharged for cause and not entitled to any fee, or in the alternative, if discharged without cause, Rovegno and Taylor should have their fee determined on a <mask> basis. For the following reasons this court finds that the outgoing attorneys were dismissed without cause, and the outgoing attorneys, because of no prior fee agreement with the incoming attorney, are entitled to payment of legal fees from the settlement proceeds on a contingency basis.


Claimant County of Monroe alleges that upon the sentencing of convicted felons it is the duty of the County Sheriff to deliver said defendants to the Department of Correctional Services (see, CPL 430.20, 430.30; Penal Law § 70.00 [1]; § 70.20 [1]), and that this transfer must be effected "forthwith” (CPL *262430.20 [1]). The claimant county contends that, due to the State’s unwillingness to accept convicted felons "forthwith”, said claimant was required to house and maintain numerous State-ready prisoners for periods averaging between 10 and 49 days after sentencing, the longest delay in acceptance being 189 days. The county now seeks to recover for the expenditures which it incurred by reason of the State’s alleged breach of the statutory mandate of CPL 430.20 (1). However, recognizing that recovery cannot be obtained through an action on an implied in fact contract (see, Parsa v State of New York, 64 NY2d 143, 147-148), or by application of the doctrine of <mask> (see, Business Jet Airlines v County of Nassau, 105 AD2d 679; see also, Dempsey v City Univ., 106 AD2d 486; County of Onondaga v State of New York, Ct Cl, motion No. M-31741, Dec. 26, 1984, Lowery, J.; see generally, Beth Rifka, Inc. v State of New York, 114 AD2d 560), the county advances the argument that the provisions of CPL 430.20, which require the State to accept sentenced prisoners "forthwith”, also establish an action for money damages upon the State’s failure to follow said directive.


The many holdings that the right of a fiduciary to commissions does not create a disqualifying interest, within section 347 of the Civil Practice Act, draw a distinction between a testamentary benefit, which is a gratuity, and an opportunity created by a will to perform services and receive remuneration therefor on a <mask> basis. In differentiating between something donated and something earned the courts have held consistently that a fiduciary’s expectancy of fair compensation for services does not render him incompetent to testify to personal transactions with his testator (Reeve v. Crosby, 3 Redf. 74; Rugg v. Rugg, 83 N. Y. 592; McDonough v. Loughlin, 20 Barb. 238; Matter of Folts, 71 Hun 492; Loder v. Whelpley, 111 N. Y. 239; Matter of Benardini, 238 App. Div. 433, affd. 263 N. Y. 627; Matter of Wilson, supra; Matter of Behan, 159 Misc. 337; Matter of Faeth, 200 Misc. 143).


Where there is an express contract for compensation, an action will not lie for <mask>. (Foster v White & Sons, 244 App Div 368, 371, affd 270 NY 572 [1936]; Jontow v Jontow, 34 AD2d 744 [1st Dept 1970].) This principle applies to the awarding of attorneys’ fees. (Jontow v Jontow, supra; Murray v Waring Hat Mfg. Co., 142 App Div 514, 517 [2d Dept 1911].) Accordingly, where there is an express contract, as here, providing for a fee division between counsels, the fees due to referring counsel and the attorney to whom the case was referred are not to be determined based on quantum meruit. (Jontow v Jontow, supra; Sterling v Miller, 2 AD2d 900 [2d Dept 1956], affd 3 NY2d 778 [1957].)


The court is sympathetic to the assertion that the legal representative, in this instance the executor, performed any number of valuable services to the estate, and acted appropriately in making its decision regarding the lump sum versus the installment payments. It was its duty to do so. As this court has observed on any number of occasions, however, the payment of executor’s commissions is purely statutory and arithmatic. All too often it bears no resemblance to a <mask>. Simply put, executor’s commissions are computed on amounts received and paid out. Accordingly, despite it having performed valuable services in connection with the asset, it was an asset neither received nor paid out and accordingly not commissionable. It has long been held that commissions are not payable on property passing directly to a trustee and bypassing the executor. (Matter of Del Monte, 66 Misc 2d 458.) So too must this court dismiss the argument that the asset was commissionable because executor performed a service in connection therewith. That is simply not the qualifying standard in this State. On any number of instances executors are called upon to exercise authority and perform services with no commission available. Real property turned over in kind, efforts made with respect to stock specifically bequeathed are but two instances of areas described where no commission is available. (See, Matter of Tucker, 75 Misc 2d 318; Matter of Lane, 55 Misc 2d 88; Matter of Cullen, 127 Misc 2d 105; Matter of Roth, 53 Misc 2d 1066; Matter of Salomon, 252 NY 381.) While the efforts made in the exercise *199of its executorial duties have benefited the estate, unfortunately the law does not provide for recompense of those efforts beyond the calculable commissions. However, if there are additional attorney or other professional support fees with respect to the executor’s decision the court allows those as disbursements on their itemization.


Here, it is not disputed that plaintiff did not possess a home improvement license. Thus, if plaintiff was required to possess such a license, plaintiff would be precluded from recovering under either the contract or in <mask>. We agree with plaintiff, however, that no license was required, since the building in which the work was performed is situated outside the City of New York.


Although the plaintiff’s second cause of action against defendant Frank sounds in <mask>, an amendment of the pleadings to allege a cause of action in express contract would be permitted. See Dittmar Explosive v A.E. Ottaviano, Inc. (20 NY2d 498), Diemer v Diemer (8 NY2d 206) and Harbor Assoc. v Asheroff (35 AD2d 667) especially where the defendant Frank is on adequate notice of the underlying facts and the only change is one of theory. (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3025, C3025:15-C3025:17, pp 486-488.)


Katsura determined the engineer could not orally modify the contract, explaining: "There is no provision in the City charter for execution of oral contracts by employees of the City who do not have requisite authority. The alleged oral statements by the associate city engineer and project manager are insufficient to bind the City. ' "No government, whether state or local, is bound to any extent by an officer's acts in excess of his ... authority." ' " ( Katsura, supra, 155 Cal.App.4th at p. 109, 65 Cal.Rptr.3d 762.) Katsura then held " 'a private party cannot sue a public entity on an implied-in-law or quasi-contract theory, *73because such a theory is based on <mask> or restitution considerations which are outweighed by the need to protect and limit a public entity's contractual obligations.' " [Citations.] [¶] ... The reason is simple: ' "The law never implies an agreement against its own restrictions and prohibitions, or [expressed differently], 'the law never implies an obligation to do that which it forbids the party to agree to do.' " ' [Citation.] "In other words, contracts that disregard applicable code provisions are beyond the power of the city to make." ( Id. at pp. 109-110, 65 Cal.Rptr.3d 762.)


Except in one particular, hereinafter mentioned, the three counts relate to the same transaction. On that ground the respondents’ counsel contends that the pleading violates the mandate of the Code, that the complaint must contain “ a plain and concise statement of the facts constituting each cause of action, without unnecessary repetition.” (Sec. 481, sul^ 2.) But there may be more than one - cause of action arising out of the same transaction, and if the several causes of action are such as may be united under section 484, their joinder does not necessarily vitiate the complaint. Where it can be seen 'that the statement of each cause of action is probably needful in order to prevent a failure of justice, in consequence of a variance between the pleading and the proof, we think such statement, provided it be plain and concise, should not be regarded as “unnecessary repetition” within the meaning of the Code. Thus, in an action for labor and. services alleged to have been performed under a special contract at *103an agreed price, if it appears that, from the circumstances of the case, it is doubtful whether the alleged contract can be satisfactorily established, we think the spirit of the Code does not prevent the adding of a count for the same labor and services upon a <mask>. In the pi’esent case the first count is of that nature and it. embraces a period from the 1st of October, 1884, to 1st of January, 1885, not covered by the special agreement as set out in the other two counts. Upon these grounds we think the first and second counts may be permitted to stand.