Opinion
October 30, 1981
Appeal from the Niagara Supreme Court, Wolf, J.
Present — Simons, J.P., Hancock, Jr., Doerr, Denman and Moule, JJ.
Judgment unanimously modified, and, as modified, affirmed, without costs, in accordance with the following memorandum: Plaintiff, an attorney, brought this action for legal fees which he claimed were owed under an alleged modification of a retainer agreement with defendants who comprise the Town Board of the Town of Niagara. Defendants counterclaimed to recover alleged overpayment. After a nonjury trial, judgment was awarded to defendants on their counterclaim and plaintiff appealed. In reviewing findings of fact in a nonjury trial, the record should be viewed in a light most favorable to sustain the judgment, due deference should be accorded Trial Term in matters of credibility and the findings of fact should not be disturbed unless such determination could not have been reached under any fair interpretation of the facts (Matter of Dearmyer v. Clark, 71 A.D.2d 807, 808; Tomaino v. Tomaino, 68 A.D.2d 267). Plaintiff's action was properly dismissed. There was insufficient proof of an oral modification but even if there had been, such agreement could not bind the town. A town's contractual obligations can be created only in the manner provided by statute (Town Law, § 64, subd 6; New York Tel. Co. v. Town of North Hempstead, 41 N.Y.2d 691, 695-696; 10 McQuillin, Municipal Corporations, §§ 29.106-29.107). The proof established that defendants are entitled to judgment on the counterclaim; however, the amount of the award should be $241.47, plus costs and disbursements. That figure represents the $32,778 received by plaintiff, from which is subtracted $22,031 (plaintiff's annual retainer and the disbursements and lawsuit work for the period January-September, 1977); $6,946.53 (the portion of retainer for town work and the disbursements and lawsuit for both sewer and town for the period October-December, 1977); $784 (disbursements for title abstract); and $2,775 (town work retainer and quantum meruit for sewer work for January 1, 1978).