The decision of Rubin v Empire Mut. Ins. Co. (25 NY2d 426) is helpful in the resolution of the novel question presented herein. In that case, the plaintiff sought the recovery under an automobile liability policy of “ ‘all reasonable expenses incurred * * * for necessary medical * * * services’ ” (p 428). Plaintiff did not actually pay for these medical expenses, since they were covered by a workers’ compensation policy. Nevertheless, the court therein determined that the medical expenses were “incurred” as soon as they could have been charged and that the plaintiff had, therefore, incurred these expenses and was entitled to their recovery. Additionally, the liability is deemed to have been incurred as soon as the person who will perform the services has been retained, without regard to when the services will be performed. (Whittle v Government Employees Ins. Co., 51 Misc 2d 498; Farr v Travelers Indem. Co., 84 Misc 2d 189.)
Similarly, in this case, though the tenants were not actually to be called upon to pay the legal fees, and though the services were yet to be performed, they did incur the liability for the fees; and the opposing party is not to be excused of liability simply because a contingency arrangement was made for payment of the fees.