author: By the Court.—Sedgwick, Ch. J.

text:
    VIRGILIO DEL GENOVESE, Appellant and Respondent v. THE MAYOR &c. of THE CITY OF NEW YORK, Respondents and Appellants.

      Agent, authority in, when not implied—Estoppel; principal, when not estopped from denying agent's authority—Improper nomenclature, not being injurious, is not cause for reversal.

    Where a contract for the doing of work contains an express provision requiring a certain thing to be done, as specifically provided for, no implication can arise than an agent, appointed by the party, for whom the work is to be done, to represent him as to certain other things in respect of the work, is authorized to vary the contract as to the specific provisions thereof.
    Where in such case the principal has made no representation in words or acts that the agent was authorized to give directions directing the work so specifically provided for, to be done, otherwise than as provided for, the principal is not estopped from denying the agent’s authority by reason of the party who claims the estoppel having acted under views which he chose to take as to the agent’s authority.
    The principal in such case, is not estopped from denying authority where he receives no benefit from the doing the unauthorized acts, and is in order to take the work as contracted to be done, forced to accept it in its condition at the time of acceptance.
    Where there are three estimates, each of which has testimony to support it, and the court in answer to a question by the jury as to whether they must bring in a verdict for one of the three amounts, or could compromise the amounts, instructed them: “ You must bring in a verdict for one of those amounts.” Held, not error.
    Improper nomenclature by the trial judge, such as calling the certificate o£ an officer of a municipal corporation an ‘‘ admission ” by the corporation, when not injurious, as where the evidence shows that the certificate of the officer was made on a certificate of an agent employed by him who testified that he made the data from which his statement was made, and that he believed his statement to have been correct, is not cause for a reversal.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided April 2, 1888.

      Appeals from judgment in favor of plaintiff, entered upon the verdict of a jury.
    The facts sufficiently appear in the opinion.

      Morgan J. O'Brien, counsel to the corporation, and Francis M. Scott and Woolsey Carnalt of counsel for defendant, on the questions considered in the opinion, argued:
    I. The court erred in the charge to the jury. It was error to characterize the.certificate of the commissioner of public works attached to the assessment roll as an “admission” on the part of the city. This certificate is not made evidence by the contract. The only contest was as to the amount of work done. -There was no question as to the completion of the work. The contract provides that the return of the surveyor—not of the commissioner of public works—shall be, prima facie, the evidence of the amount of work done. The only certificate to be given by the commissioner of public works is that the work has been completed to his satisfaction, and has been accepted by him. The commissioner of public works was called and testified that he knew nothing personally, when he signed the certificate of the accuracy of the measurements, but-that he signed it, as of necessity he must, upon the faith of the prior certificates of Mr. Dean and Mr. Birdsall, and this clearly appears upon the face of the certificate itself. The jury had already been told in detail by Mr. Loomis exactly how the figures contained in the assessment certificate had been arrived at, and lastly, the certificate attached to the assessment roll had nothing to do with the plaintiff or his claim. It is as clear as anything could be, that this certificate was not evidence of anything set forth in it—it was not provided for in the contract—it was not made from an actual survey. And yet the court in charging the jury repeatedly referred to it as an “admission” on the part of the city. “The estimates which are admissions on the part of the city” .....“The admissions contained in the certificates signed by the defendants themselves ”.....“ The other estimate which was shown by the admission of the plaintiff [Queere, defendant) to which General Newton had signed his name.” Surely it cannot be claimed that these repeated characterizations of this certificate as an “ admission ” did not operate to the. disadvantage of the defendant—in truth it would have been next to impossible for the jury, after having this “ admission” so constantly impressed upon their notice, to have found a verdict for the defendant. It was error also to charge that Yiele’s final certificate “ was made, or is supposed to have been made from an examination made by the surveyor while the work was in actual progress.” There is absolutely ño evidence in the case to warrant such a charge. It was not even attempted to be shown how Yiele arrived at the figures. He himself was not called as a witness, and if he had been it is doubtful if he could have told what peculiar process he followed—it is at least certain that he was not given an opportunity. Yiele’s is evidence only by virtue of the terms of the contract, and is by it made only prima facie evidence, controlling in the absence of evidence to the contrary. When original evidence had been introduced by the defendant contradicting the certificate, the burden of proof shifted, and it became incumbent upon the plaintiff to prove the true quantities of earth and rock excavation by competent evidence.
    II. The court erred in its answer to the question propounded by the jury. The question sent in was: “Must we bring in a verdict for one of the three amounts, Yiele’s, Quien’s or the Newton statement, orean we compromise the amounts ? ” To which the court sent the following reply: “ You must bring in a verdict for one of those amounts.” This was error if there was any possibility that the truth lay between the three estimates mentioned. The three statements referred to by the jury were : 1st. Viele’s contained in the final certificate, arrived at no one knows how; 2d. General Newton’s certificate attached to the assessment roll (which the court insisted upon calling an “admission”) made up from Loomis’ estimate of the relative quantities of earth and rock made after the work had been completed; 3d. Quien’s estimate made from an actual survey after the earth had been stripped from the rock, and before any rock had been excavated, considering all therefore excavated as earth, and all yet to be excavated as rock. But there had been besides these estimates a doubt engendered by the evidence as to whether or not Quien had included in his figure for rock excavation a piece of rock near Riverside avenue estimated to contain about 333 cubic yards. Now it may be that the plaintiff was right about this one piece of rock, and that it should have been added to Quien’s estimate. If so, the truth would have lain midway between Quien’s figures and those contained in the Newton certificate. If this were so the court’s answer to jury’s question would have, and did prevent the rendition of a “true verdict,” or the jury might have been of the opinion that while either Viele’s or Loomis’ estimates of the total excavation was correct, yet Quien’s survey of the rock constitutes the best basis for computing the relative quantities of the earth and rock.
    HI. The complaint was properly dismissed as to the second cause of action. No obligation rests upon the city under the contract to furnish “ grade stakes ” to the contractor. The contract refers the contractor to the profile on file in the street commissioner’s office, identifying it by the date of its filing. On this profile are shown the outline of the street surface before the work commenced and its outline when graded. It was the contractor’s business to obtain the grade line from this profile, and procure it to be defined upon the work by an engineer of his own choosing. Or, in the present case, he might have done this for himself, for he testifies that he is an engineer by profession and competent to determine for himself from the profile just whe're to excavate to. When he had completed the work as required by the profile it would be the duty of the , city surveyor, appointed by the commissioner of public works, to certify to such completion, and iii case of a refusal on the part of the surveyor to give such certificate, the contractor would be entitled to recover without such certificate, if, in point of fact, the work was done in accordance with the profile. Bowery Nat. Bank v. Mayor &c., 63 N. Y. 337; Baucker v. Mayor, 8 Hun 409. The only duties or powers imposed or conferred upon the city surveyor by the terms of the contract are to make the monthly seventy per cent, certificates, and to certify the total quantity of work done after the completion of the contract, and to receive $>10 from the contractor for each certificate so made. Nowhere in the contract is there any undertaking or agreement on the part of the commissioner of public works that the grades shall be furnished to the contractor, except by referring him to the profile. Bonesteel v. The. Mayor &c., 22 N. Y. 162; Brady v. Mayor etc., 20 Ib. 312; Riley v. Brooklyn, 46 Ib. 444; The agreement as to surveying is simply that when the work is done the commissioner of public works will send a surveyor to examine it, and if it has been properly done, so to certify, but even his certificate is not conclusive upon the city, for its accuracy may be disputed. Doubtless, as a matter of precaution, the contractors prefer to obtain their grades from the surveyor, who in the end will be called upon to certify to the accuracy of the work, but this is a mere voluntary act. They are not required by their contract so to do, and the city surveyor (who is not a city official) is not authorized by the contract, or by any act or ordinance to give grades as the work progresses. If he chooses to do so, and the contractor chooses to rely upon him, that is a matter between them, and if a mistake is made by the surveyor the contractor can have no claim against the city, for in giving the grades the surveyor did not, and could not under the terms of his employment, represent or bind the city in any way. It will be observed that under a contract like the present the city surveyor has very restricted powers, and in so far as he is the agent of the city his agency is of a very limited and special character. He had no general authority to represent or bind the city. His authority extends only to examining and measuring the work as it progressed and when it is completed, and making certificates of the results of such measurements. And the plaintiff knew just what the surveyor’s powers and duties were, for it was all written down in his contract. The city was under no obligation to send a surveyor to give grades to the contractor, and did not undertake to do so. Clearly, therefore, it cannot be held liable for errors made by a surveyor selected by the •contractor himself, even though it happened that the surveyor so employed was the same one that the city had employed to make measurements of the work done and materials used. But in the present case the plaintiff sought to recover nob even for mistakes on the part of the city surveyor, but for mistakes made by two other persons, strangers to the contract and to the city (Mr. Klinkerfues and Mr. Quien). We have undertaken to demonstrate that the city is not liable for the mistakes of the city surveyor himself in giving grades to the contractor ; how much less reason is there for holding it to liability for the mistakes of two entire strangers. We have pointed out how special and limited was the agency intrusted to the surveyor by the city—can it be contended for an instant that the powers conferred upon such an agent can be delegated by him to a stranger without the knowledge or consent of his principal ? Mr. Yiele’s expressed duty under this contract was to measure the work and to execute certain certificates upon which payments to the contractor were made. Would the commissioner of public works have received and acted upon certificates signed by Klinkerfues ? Certainly not. Is there any better reason why Klinkerfues should be permitted to conclude and prejudice the city by performing duties or executing powers claimed to have been, not expressly, but only impliedly conferred on Yiele ? Our contention is that Yiele was not authorized or empowered to give, as the representative of the city, any grades or grade stakes to the contractor, and that if he assumed to do so he did so as the employee and agent of the contractor and not of the city; and that what Yiele himself could not do he clearly could not delegate to others. The truth is, the contractor has suffered loss by relying upon a careless or incompetent surveyor, and if it be said that the city also employed him, the answer is ready. It is that the judgment recovered under the first cause of action in this case is the price the city will have to pay (if the judgment stands) for its reliance upon the same inefficient surveyor.

      S. A. Walker, attorney, and L. Laflin Kellogg of counsel for plaintiff, on the questions considered in the opinion, argued:
    I. The court erred in dismissing the plaintiff’s second cause of action, except as to the sum of $279, and in refusing either to direct a verdict upon that cause of action for the plaintiff or -charging the jury as requested in that behalf by the plaintiff. The city, while conceding that this extra work was done and occasioned by the act of their engineer, raised three objections to the allowance of this claim. 1. That the city were not obliged to give any grade stakes. 2. That grade stakes were not given by any one authorized to give grade stakes because given by the assistants or agents of Mr. Yiele, the surveyor, and not by Mr. Yiele himself. 3. The claim that the city is not responsible for any of the damage thus occasioned. The city was responsible .for any damage caused by erroneous grades given by its officers, and the plaintiff was entitled to recover thereunder. The plaintiff claims and the proof shows: 1. That the city surveyor is the agent of the defendant, acts under the direction of the commissioner of public works, who is obliged by ordinance to appoint him, and has, under the direction of the commissioner of public works to whose satisfaction the work is to be finished, a supervisory control over the work under the entire contract. 2. That the commissioner of public works, through his superintendent of street improvements, having assumed the duty of giving grade stakes, and having compelled the contractor to do the work according to those grade stakes, has made the defendant responsible for damages resulting from that act. 3. That the plaintiff is entitled to recover the actual damage caused by the defendant or its authorized agents, without reference to the prices named in the contract, (a) The agency of the surveyor is conclusively proved. The contract provides: The work is under the charge of the commissioner of public works. It must be done to his satisfaction, and only in substantial accordance with the said specification. The work is let pursuant to ordinance which required it to be done under the direction of the commissioner of public works, and directed him to appoint one of the city surveyors to supervise the same. The commissioner of public works appoints Herman K. Yiele. Under the contract, the legitimacy of which-is not disputed, the work is to be examined by the surveyor before placing any filling thereon, after which earth filling is to be filled to grade. The allowance for boulders will be de- . termined by the engineer. The slopes are to be regulated as directed by the engineer. The return of the city surveyor shall be the account by which the amount of materials furnished and work done shall be computed. It is further expressly understood and agreed by and between the parties hereto, that the action of the engineer or surveyor by which the said contractor is to be bound and concluded according to the terms of this contract shall be that evidenced by his final certificate. He is referred to in the contract as an officer or agent of the defendant. “ Nor shall any department or officer of the city of New York be precluded or estopped by any return or certificate made or given by any engineer, surveyor, inspector or other officer, agent or appointee of said department of public works.” It thus appears distinctly that the city surveyor is the agent of the city and the one fully charged by the commissioner of public works with the supervision of this work. (6) It is true, as stated by the defendants, that there is no actual covenant in words and in terms that the surveyor in charge of the work shall give grade stakes or stake lines. The court hereon will take judicial notice that it has been a custom for years in the city of New York for the surveyor to give such grade stakes and grade lines, and that it would be impossible to conduct and carry on a contract of this nature without doing so. The whole spirit of the contract infers that the work shall be done under the direction of the engineer who is allowed more or less discretion in the premises, and it would be impossible for him to carry on the work without grade lines. The commissioner of public works having charge of the contract by law and by terms through the superintendent of street improvements to whom he confided the direct charge of the work as shown by the contract, actually in this case directed the surveyor to give the contractor grade stakes; “ we notified him after the contract was signed, like every other surveyor that Mr. del Genovese was notified to commence work and to give him bhe necessary grade stakes.” In accordance with that instruction Mr. Yiele sent his assistants to the contractor on the line of the work and directed them to give him grade stakes, (c.) These men acting for Yiele came to the work and gave the wrong grade stakes, which caused the damage. Applying the principles of law to these facts we find: 1. The fact that the commissioner of public works ordered grade stakes to be given obviates any necessity for their requirement by the contract. The city assumed the duty of giving these grade stakes. It is therefore estopped by its act from claiming that it was error so to give them. This precise question was so decided in a similar case, by Chief Justice Van Brunt,' at a trial term, and affirmed by the general term of the supreme court, in Mulholland v. Mayor, 44 Hun 630. The opinion is not reported, but the court there held distinctly with the plaintiff on this point that the act of the city estopped them from denying that they were not required to give the grade stakes. In that case the city had already paid the contractor for the extra amount of work done and occasioned by the erroneous grades at contract prices. Is was held, however, that by reason of certain clauses existing in the contract in that case, which do not exist in this, that the plaintiff was not entitled to recover the extra cost as claimed here. 2. The fact that the wrong grade stakes were' given by the assistant of the engineer cannot avail the defendant. The surveyor in this case is in no sense that class of agent which cannot delegate his authority, or who is obliged to do all the work personally himself. It might with equal force be claimed that he should do all the measuring personally himself when it would be impossible to do so without the aid of a rod man. It might with equal force be claimed that the commissioner of public works and other officers named in the contract should personally do all the work themselves, should not be allowed to appoint others to aid them. The agency of Viele being first established and the power and authority of these assistants to give the grades being conceded to be true, make their act as much his act and that of the city as if he had done the act personally. It is well settled that the plaintiff is entitled to recover damage for any additional expense incurred in consequence of being obliged to do the work under disadvantageous circumstances occasioned by the opposite party. Dubois v. Delaware & Hudson Canal Co., 4 Wend. 285; Ladue v. Seymour, 24 Ib. 60; Sedgwick on Damages, page 243 (star paging 222); Alloman v. Mayor of Albany, 43
      Barb. 33; Cross v. Beards, 26 N. Y. 88; Starbird v. Barrons, 38 Ib. 330; Robinson v. City of Brooklyn, First Dept., March 1876 ; Ring v. Mayor, Lawrence, J.; Slattery v. Mayor, Van Vorst, J.; White v. Mayor, Donohue, J.; Fellows v. Mayor, Larremoke, J.
    II. There was no error in the directions of the court to the jury. The court could not correctly give any other instructions.
   By the Court.—Sedgwick, Ch. J.

The plaintiff argues that there was error in the decision of the court that the plaintiff was not entitled to recover upon his second cause of action claimed, excepting to a certain amount, as to which there is no controversy.

The second cause of action was claimed upon the following facts: The plaintiff had contracted with the defendants to make a public improvement in grading, etc., a street. The contract was in the usual form. The defendants had appointed a city surveyor to represent them in doing certain things in respect of the work. He, or others at his command, fixed certain grade stakes which indicated the depth to which excavations should go. He intended that the grade stakes should guide the plaintiff. Accordingly, the plaintiff excavated to the indicated depth. In fact this was below the grade as shown on profile maps, to which the contract specifically referred. The excavation being deeper than was called for by the contract, filling in was made necessary. The plaintiff claiméd that he should recover the value of the work done by him beyond the work of the contract, but under the indications of the grade stakes. This claim is placed upon two grounds.

The first is, that it was the intention of the contract, that the city surveyor should direct the plaintiff, as to the depth of the excavations. It is admitted that there is no express provision of the contract to such effect. There can be no implication of it, because it was an essential part of the contract that the plaintiff should excavate to a certain depth, for the compensation, according to the amount of work as agreed upon. An implication cannot be understood that any third party, city official or not, should have the authority to vary the contract.

The second ground is, that the city is estopped from maintaining that the city surveyor was without authority to fix the depth of the excavation. In circumstances like these no estoppel could exist, unless the defendants led the plaintiff to believe that the city surveyor was an agent of the city to indicate the way in which the contract should be performed. There was no proof that the plaintiff acted upon the indication, excepting under views that he chose to take as to the authority of the city surveyor, with no representation, in words or act, of any corporate kind, or indeed official, that the surveyor was an agent of the city in regard to the matter. The surveyor could not make himself an agent, by his own act or words, and no other official could make the surveyor such an agent. The estoppel cannot be placed upon the fact that the city received any benefit from the increased work which it accepted. There was no such benefit, and the city, in order to take the work as contracted to be done, was forced to accept the work in its condition, at the time of acceptance.

I find no equity in a general sense, in the plaintiff’s position. The plaintiff had contracted to excavate, etc., according to profiles. He was a civil engineer, and could ascertain the depth of excavation from the profiles. He was not in any sense required to follow any direction of the city surveyor that varied the contract, and indeed, the testimony shows that those employed by the city surveyor were willing to correct the mistake, when attention was given to it.

I am of opinion that in the- plaintiff’s appeal the judgment should be affirmed with costs.

In the defendants’ appeal, I am of opinion that, in view of the terms of the contract and the character of the issue, as to how much work in all had been done, the monthly certificates given to the contractor were admitted in evidence correctly.

The jury asked the court, Must we bring in a verdict for one of the three amounts, Viele’s, Quien’s, or the Newton statement, or can we compromise the amounts ? ” The court answered, “ You must bring in a verdict for one of those amounts.” The counsel for defendants excepted to this. The learned counsel for defendants argues, that as the testimony was of a kind that did not compel a conclusion that one of the three statements must have been exactly correct, if the plaintiff was entitled to recover, the answer of the court was erroneous. I think the question presented as possible courses which the jury might follow, the alternative of finding an absolute verdict for the amount of one of the three statements, or of compromising the amounts. The jury had no right to compromise the matters. In such case there would be supposed to be an adjustment of differences, between the jurors, while the respective parties in the jury would still be of opinion that their position was in accordance with law and fact. The other alternative was to be preferred of finding for the amount of one of the statements. Each of these had testimony to support it which the jury should weigh. Nothing was said by the court, to lead the jury to find for one of the three, unless the evidence convinced it that such finding was in accordance with the testimony. The exception as to this should not be sustained.

A certificate of the commissioner of public works was given in evidence that contained, with other things, a a statement of the amount of work done upon the improvement. The judge in his charge, called this certificate an admission of the defendants as to the amount. An exception was taken to this on the ground that the commissioner had no power to bind the city in this respect. This may be correct. Nevertheless the plaintiff was not injured, for the statement of the certificate was made upon the certificate of engineer Loomis. Loomis was called as a witness and testified that he made total measurements finally, and classifications from an earlier estimate. He believed his statement to have been correct and knew nothing to the contrary. Taking these facts info consideration it was not injurious to say that the statement of the commissioner was an admission.

In the defendants’ appeal the judgment should be affirmed with costs.

Freedman, J., concurred; Ingraham, J., not voting.


source: Caselaw Access Project

license: Public Domain

text:
    SARAH R. ODELL, an infant, &c., Appellant v. JUDAH H. SOLOMON, et al., Respondents.

      Witness, deceased; as to reading from case made on appeal Ms testimony on a former trial.—Expert testimony, what no subject of.

    To authorize the reading on a second trial, from the case made on appeal from the judgment entered on the first trial, the testimony of a witness since deceased, taken sténographically by the official stenographer on the first trial, it must be shown that the stenographer correctly took his evi- , deuce on the particular subject which is sought to be proved by it, and the whole of it; that the stenographic minutes were correctly written out; and that the whole of his testimony shown by the stenographic minutes thus taken, and thus correctly written out, was correctly inserted in the case on appeal.
    The question as to the possibility of a man being able to tell from exterior appearances whether a structure or part of a structure is going to fall, is not a subject of expert testimony.
    Before Sedgwick, Ch. J., Truax and Dugro, JJ.

      Decided April 2, 1888.
    Appeal by plaintiff from judgment entered on verdict for defendants, and from order denying motion for new trial made upon the minutes.
    The facts sufficiently appear in the opinion.

      Alfred Pagelow, attorney and of counsel, and Emil S. Arnold of counsel for appellant, in the questions considered in the opinion, argued :
    I. The minutes of Hughes’ testimony, as contained in the printed record upon the former appeal, should have been excluded. There is no possible ground upon which the admission of this testimony can be sustained. (a) At common law the testimony of a deceased witness given upon a former trial of the same action may be proved for the same purpose for which the testimony was given by the deceased, in two ways. It may be proved by any person who will swear to the testimony from his own memory; or it may be proved by notes or minutes of the trial taken by any person who will swear to their accuracy. Jackson v. Bailey, 2 Johns. 17; White v. Kibling, 11 Ib. 128 ; Jackson v. Lawson, 15 Ib. 539 ; Clark v. Vorce, 15 Wend. 193 ; Crawford v. Loper, 25 Barb. 449; Lawson v. Jones, 61 How. Pr. 424; Huff v. Bennett, 6 N. Y. 337. Such testimony is, however, received with great caution. Crary v. Sprague, 12 Wend. 45. It was formerly held where the testimony of a deceased witness given upon a former trial is sought to be proved by a person who heard the testimony at the time, that he must repeat the precise words of the deceased, and that it was not sufficient to give the substance or effect of the testimony. The Commonwealth v. Richards, 18 Pick. (Mass.) 434; and although this rule has been modified, and it is now sufficient to state the substance of the testimony (Cornell v. Green, 10 Serg. & R. 14), he must state the substance of the whole of what was said on the particular subject which he is called to prove. If he can state only what was said on that subject by the deceased on his examination in chief, without also giving the substance of what he said upon it in his cross-examination, it is inadmissible. Greenleaf Ev. § 165; Wolf v. Wyeth, 11 Serg. & R. 149. The same rules of caution are also applicable where it is sought to prove the testimony of the deceased witness by notes or minutes of the testimony taken at the previous trial. Such notes or minutes of the testimony are not admissible as evidence per se. It must first appear that the witness is dead, that the deceased was actually sworn as a witness, and that there has been a previous trial. In addition to this, the genuineness and accuracy of the testimony must also be established by the oath of the person who took the notes; after which they maybe admitted but not before. Huff v. Bennett, 6 N. Y. 337; Crouch v. Parker, 56 Ib. 597; Clark v. Vorce, 15 Wend. 193 ; Crawford v. Loper, 25 Barb. 449 ; McIntyre v. N. Y. Central R. R. Co., 37 N. Y. 287; Martin v. Cope, 3 Abb. (Ct. of App.) 182. But the notes or minutes to be thus admitted in evidence must be the original memoranda of the testimony made by the witness and not copies. Halsey v. Sinsbaugh, 15 N. Y. 485. (b) A case prepared upon an appeal from the judgment on a former trial of the action is not competent evidence in a subsequent trial of the same case. Wheeler v. Ruckman, 35 How. Pr. 350; S. C., 7 Robt. 447; Neilson v. Columbian Ins. Co., 1 Johns. 301; Kirk v. Mowry, 24 Ohio St. 581. (c) These rules of the common law as to the testimony of a deceased witness upon a former trial of the same action have not been altered or modified by statute, and are still in full force. There is nothing in the Code of Civil Procedure upon the subject except section 830. That section relates to the .testimony of deceased parties to the action only, and not to witnesses generally. At common law the rule that the testimony given on a former trial by a witness since deceased was admissible in evidence was also applicable to the testimony given by a party to the action, Emerson v. Bleakley, 2 Abb. (Ct. of App.) 22; and the only effect of the above-mentioned section of the Code is to incorporate the common law rule into the Code in its application to parties examined as witnesses. Bradley v. Mirick, 91 N. Y. 293.
    II. The court also erred in admitting the opinion of the witness Hughes as to the ability to foretell the accident which was the cause of the injuries complained of. Greenleaf Ev. § 440; Lawson on Expert and Opinion Evidence, Rule 37, p. 203; Newell v. Wright, 3 Allen 166, 170; Teall v. Barton, 40 Barb. 137; Salter v. Utica & Black R. R. Co., 59 N. Y. 631; Higbie v. Guardian Mutual Life Ins. Co., 53 N. Y. 603; Payne v. Hodge, 7 Hun 612; affd., 71 N. Y. 598; Keller v. New York Central R. Co., 2 App. (Ct. of App.) 490; Sackett v. Spencer, 29 Barb. 180; Manke v. People, 17 Hun 410; affd., 78 N. Y. 611. Judged by the rules laid down in these cases the testimony of Hughes was inadmissible and should have been excluded. The subject of the evidence was not such as required the opinion of an expert. It was not one of special skill'or experience, but of general observation. All that he should have been allowed to testify to was the condition of the windows and sashes, which he had already done, and the jury should have been allowed to draw their own inference from those facts.

      Myer S. Isaacs, attorney and of counsel, and Adolph L. Sanger of counsel for respondents, on the questions considered in the opinion, argued:
    The testimony of a witness (since deceased) given upon a former trial may be read at the second trial, and may even be proved by a person who heard the testimony of the witness, notwithstanding that the original testimony was reduced to writing. 1 Whart. on Ev. § 177 ; Osborn v. Bell, 5 Den. 370; Wilbur v. Selden, 6 Cov. 162. Even the testimony of a party to the action may thus be given, or read, in evidence. Code Civ. Proc. § 830. In Clark v. Vorce, 15 Wend. 193, a witness was called upon a second trial to prove what a witness, since deceased, had testified to at the first trial. Counsel produced in cofirt, and read, the minutes of such former witness’s testimony stating that he had taken down the material part of his testimony, but not every word thereof; and such evidence was held admissible. Clark v. Vorce is cited with approval “ as a leading case ” on this question in Crawford v. Loper, 25 Barb. 454; and see Morehouse v. Morehouse, 41 Hun 146. In Van Bergen v. Ackles, 21 How. Pr. 314, the court held that after a case and exceptions has been settled and filed with the clerk of the court it may be taken prima facie in the further progress of the action, as evidence of the facts therein appearing, and the court permitted the testimony in such printed case to be read as evidence. The case was after-wards affirmed on appeal. 21 How. Pr. 317.
   By the Court.—Sedgwick, Ch. J.

The defendants had been the occupants of a store. The plaintiff had been struck by the sash of a window falling from the store, while she was upon the street passing the store. She brought this action for damages, alleging that the sash had fallen through the negligence of the defendants.

The trial below was the second trial of the issues. After the first trial an appeal had been taken in which a case had been made. Upon the present trial it was shown by defendants that a witness, examined upon the first trial, had died since then. They offered to show what was his former testimony, by reading from the case what appeared to have been his testimony. The reading was permitted under plaintiff’s objection and exception. I am of opinion that the objection should have been sustained.

The grounds upon which admissibility was placed by the argument were of different natures.

One ground was that a witness had proved that the case contained the substance of the minutes of the former trial as taken by the official stenographer and written out by him, or under his direction. There seems to be a fatal defect in this ground, because there was no proof that the minutes had been taken correctly, or themselves had been written out correctly.

Another ground was that it had been proved that the defendants had proposed a case, that the plaintiff had proposed amendments to the case, and thereafter the judge before whom the case was tried had settled it, in the form of the case offered upon the trial. I do not think that it can be inferred from the action of the plaintiff’s counsel or of the judge, that the testimony stated by the case to have been that of the witness on the first trial, was the whole of that witness’s testimony on the points that appear by the case to have been touched upon. To permit testimony of a witness upon a former trial, since dead, to be given on the after trial, it must appear that what is offered is the whole testimony given. On an appeal there is no presumption, and in this instance there was no proof that the whole testimony was necessary to be inserted in the case for the purposes of the appeal. Evén on the point of whether there should be a reversal upon the facts, repetition, incoherences, turns of phrases, self-contradictions, may have a modified construction placed upon them by the- admission of counsel or the decision of the judge, for the purpose of the the appeal, when a jury might properly give another construction. One condition of giving the former testimony of a witness is, that it was given as to the issues made upon the former trial, and identical with the issues of the second trial. When the testimony is shaped for the case, the result is that the statement of the case is as to its propriety and relevancy for an appeal.

The remaining ground is, that it Avas in the case, and that legally the case is prima facie proof of Avhat testimony was given on the trial. The same consideration, however, is to be applied, that the case Avas made not to perpetuate the testimony, but to form the material of an appeal. Of cases, Ch. J. Kent said in Elting v. Scott, (2 John. 162,) These cases are a species of testimony whiph ought not perhaps in any case to be admitted, unless when the admission is made a condition of granting a new trial, nor has it been the practice to admit them. They are generally drawn by counsel, without any communication with the parties and often with a view to bring before the court some particular point unconnected with much of the narrative part of the case, and which for that very reason, may have passed without criticism or attention.”

Under objection, the defendants’ counsel was allowed to read as part of the testimony of deceased witness the following: Even if a man went into that building in the morning he could not tell that either one of those sashes was going to fall down.”

The witness was an expert as to the proper construction of windows and sashes, the effect upon them of weather and use, and as to what would be the exterior appearance from time to time, but not I think as to the possibility of a man not being able to tell from exterior appearances, that the sash was going to fall down.

There is still a question of whether the testimony upon the present trial was not such, outside of objectionable matter, that under the former decision in this case, there was no proof of negligence of defendants. As counsel on the argument did not advert to the similarity or difference between the former and the present testimony, it is to be assumed that the present case was one for the jury.

• The judgment should be reversed as well as the order refusing a new trial, and there should be a new trial with costs to .abide the event.

Trttax, J., concurred; Dugro, J., not voting.


author: By the Court.—Freedman, J.

text:
    GEORGE W. WHITE, Respondent v. CHARLES WHITE, et al., Appellants.

      Unlawful use of another's property, liability for profits derived therefrom.— Surviving or continuing partner, liability of for profits on new business.— Double interest, allowance error; computation producing.

    Whether a surviving or continuing partner is liable for profits arising from the use in new enterprises of the capital of the deceased or retired partner, and to what extent, must depend in each case on its own circumstances.
    Profits may be allowed in cases of the wrongful use, in new enterprises, by surviving or continuing partners, of the capital of the deceased or retired partner, whenever it is made to appear that the use of such capital was a breach of trust or a gross fraud upon the deceased or retired partner, and that the allowance of such profits is, under all the circumstances, equitable. But whenever, upon the special facts of a case, such allowance is not equitable, the accounting must be confined to, the completed business of the firm at the time of the dissolution, and to' such profits as were made after the dissolution upon the unfinished contracts or enterprises of the firm; and in addition, the surviving or continuing partners are to be charged with interest upon the deceased or retired partner’s share of the surplus existing after the discharge of the partnership liabilities. Moreover they must bear all the losses sustained by or on account of new enterprises.

      Application of above rules resulting in holding that defendants are not liable for profits on subsequent business.

    A firm was composed of three partners (G. W. W., C. W. and H. R.) C. W. and H. R. (the defendants) had exclusive charge of the business of the firm in New York city and G. W. W. (the plaintiff) of that at Chicago, where he resided. Plaintiff becoming dissatisfied with the conduct of the business at New York, particularly with the loss of an - account of one Bate, amounting to $44,735.74, the firm was dissolved by mutual consent August 4, 1876, and plaintiff sold all his interest in the firm property to the other two for $57,000. Ón that day there was a credit on the books of the .firm of $70,818.40, which was the nominal value of his interest. A balance sheet of the books of account of the firm showing its assets and accounts was prepared for and used in the negotiation resulting in the sale, and it was upon a consideration of the value of certain book accounts and interests in real estate, appearing as assets on that balance sheet, that plaintiff agreed to receive for said credit of $70,818.40, the sum of $27,000, cash and notes (which notes were paid), and one third of certain real estate which was taken at $30,000. Plaintiff did not call for a deed of the interest in the real estate, and some years after transferred it to defendants at a lower price, but he received his share of the income therefrom while he was the equitable owner. In February, 1881, plaintiff brought the above action to have the sale set aside on the ground of fraud perpetrated by the defendant, H. B., in that although said Bate was in February, 1872, indebted to the firm in over $24,000, and was then insolvent to the knowledge of defendant, yet H. B. made a secret agreement with Bate whereby he, H. B., was to continue sales by the firm to Bate of firm merchandise, in the profits of which sales he (H. B.) was to have an individual interest, with the fradulent intent on the part of him (H. B.) of making for himself individually a separate profit from the wrongful use of the name and credit of the firm. The result of the transactions under this secret agreement was an increase in the indebtedness of Bate to the firm to the amount of over $20,000, making his entire indebtedness $44,735.74. An interlocutory judgment was entered, setting the sale aside, and appointing a referee to take and state an account with certain special directions. The referee allowed the plaintiff one third of the profits on all new business undertaken and carried on since the dissolution, and interest on his nominal capital of $70,818.40, as it stood on the books of the firm at the time of the dissolution of the firm, less the sum of $27,000, received by him in cash and notes.

      Meld, that the allowance by the referee of profits was erroneous. Since the dissolution of the firm, having been voluntary, and there being no fraud connected with it, or with the estimate of the then value of plaintiff’s interest, except the failure, of defendants to disclose Beed’s relation to Bate, which transaction had been brought to an end years before the dissolution, and had resulted in a dead loss as appeared on the books during all those years, and there being no fraud or deception in the arrangement culminating in the taking of the interest in the real estate (the fact that plaintiff failed to call for a deed for such interest, and years thereafter transferred it to defendants at a lower figure making no difference, as he received his share of the income from the real estate, while he was the equitable owner), it must be held that the plaintiff withdrew his entire capital, and that none of it remained, in fact, in defendants’ business; and that consequently, it could not be held that his capital contributed to the making of profits in subsequent new transactions, and since, even treating the amount which plaintiff should have received over and above the $57,000, as so much capital left by him in defendants’ hands, there was no evidence that that special amount contributed in any substantial way to the making of the profits on new business; a fortiori, since the plaintiff not only withdrew his capital, strictly so called, but also his time, skill and labor, taking elsewhere his chances of profits on his property and of reward for his services, neither sharing nor offering to share in the burdens of defendants’ business, nor allowing defendants to participate in the profits of his own.

      Double interest. The starting the calculations in the case at bar, with the assumption that the plaintiff left in the firm a capital of $70,818.40 (which was only nominally so), and then deducting only the $27,000 notes and cash (and not also the $30,000, the value of the real estate interest) , and then giving the plaintiff interest on the balance, without considering bad assets and charging defendants interest on the amount due by them on account of the Bate matter, involves in part a charge for double interest and was error.
    Before Freedman and Ingraham, JJ..

      Decided April 2, 1888.
    Appeal from a judgment entered upon the report of a referee.
    The facts sufficiently appear in the opinion,

      Albert Stickney and B. F. Edsall, of counsel, for appellants.

      Holmes & Adams, attorneys, and George H Adams, of counsel, for respondent.

       The points of the respective counsel were elaborate and exhaustive. They are too lengthy to he inserted at large, and cannot be advantageously abstracted. They can be found in the library of the court.—Reptrs.

   By the Court.—Freedman, J.

This is an appeal from a final judgment entered upon the report of a referee, and in connection with it a review is asked of the interlocutory judgment by which the sale was set aside and reference was ordered, and of several orders denying various motions of the defendants. No special reference to the orders is necessary because their review is asked only for the purpose of putting beyond question the whole case before the general term. Nor is there any tangible ground for disturbing the interlocutory judgment. Indeed no serious contention was made on that branch of the case. The result of the reference, however, presents very grave questions, and in order to determine them properly it is necessary to constantly keep in mind the case as made and established by the interlocutory judgment. ,

From 1862 to August, 1876, the parties to this action were co-partners in business, with equal interests as to profits and losses, and as such co-partners they Constituted the firm, and did business under the firm name of Chas. White & Co. From 1862 to August, 1876, the parties were co-partners as above stated; the business consisted of buying live hogs in Chicago, and slaughtering them and selling here ; the plaintiff, at the times in question, was in charge of the business at Chicago where he resided, and he had no personal knowledge of, or connection with, the actual transactions of the firm in New York, except so far as he was informed by his partners, and by the books of account which were kept at New York, to which he had access. The defendants were in exclusive charge of the business of said firm in the city of New York,” receiving the animals shipped, superintending the slaughtering “ and attending to the making of contracts of sale and selling the products of said business ; ” “ the financial transactions and the firm’s credits were under the immediate control of defendants.” In respect to the business done in New York, plaintiff wras compelled to rely, and did rely, upon the good faith of defendants and their representations. In August, 1876, the plaintiff expressed his dissatisfaction with the conduct of the business in New York, and particularly with the loss of an account of one John J. Bate, amounting to $44,735.74, and the result was that the firm was dissolved ■by consent of all parties on August 4,1876, and that the plaintiff made a sale of all his interest in the firm property to the two defendants.

As to said sale of plaintiff’s interest to the defendants, the following findings of fact made by the learned trial judge and incorporated in the interlocutory judgment are highly important, viz.:

“XVIII. That on the 4th day of August, 1876, the credit to the plaintiff on the books of the firm of Charles White & Co. was $70,818.40.

“XIX. At the time of the sale or transfer by. the plaintiffs to defendants of his (the plaintiff’s) interest in the property and assets of Charles White & Co., given in evidence on the trial of this cause, the nominal value of the interest of the plaintiff was $70,818.40, and it appeared on the books at that sum, which last sum was the difference in favor of the said plaintiff existing on the books of Charles White & Co. between the items which had theretofore been charged in account to the plaintiff, and the items which had theretofore been credited in account to him.

“ XX. That in the negotiations had between the parties to this action at the time of the proposal of the plaintiff to sell out his interest in the said partnership, a balance sheet of the books of account of said firm, showing its assets and accounts, was prepared and used; that it was upon the consideration of the values of certain of the assets of the firm appearing on said balance sheet, consisting of interest in real estate and of certain book accounts, that in the negotiations of said sale the plaintiff agreed to receive, in place of the full amount of his credit of $70,818.40, $27,000 in cash and notes and one-third of certain real estate belonging to said firm, which said one-third was taken at the valuation of $30,000.”

This consideration of $57,000 was received by the defendant together with a guaranty of indemnity by the defendants against all firm debts and liabilities.

In February, 1881, the plaintiff brought the present action to have the said sale or transfer set aside on the ground of fraud. The fraud specified in the complaint and set forth in the findings and interlocutory judgment, was a fraud by the defendant Eeed in a certain series of transactions had in the year 1872 and 1873, more than three years prior to the dissolution. This alleged fraud was of the nature following: One John J. Bate, in February, 1872, was indebted to the firm in the amount of $24,722.71 for merchandise theretofore sold him by the firm. He was then insolvent. In June, 1872, the defendant Eeed, as charged in the complaint, when Bate’s insolvency was known to him, made a secret agreement with Bate, whereby he, Eeed, was, in effect, to continue sales by his firm to Bate of firm merchandise, in the profits of which sales Eeed was to have an individual interest. The agreement was concealed by Eeed, not only from the plaintiff, but also from the defendant, Charles White, with the fraudulent intent, as charged, on the part of Eeed, of making for himself individually a separate profit from his wrongful use of the name and credit of the firm. That Eeed did make any profit was not proved. The result of the subsequent transactions thereafter had by Eeed in the name of the firm under this secret agreement was an increase in the indebtedness of Bate to the firm in the amount of $20,013.13, making the entire indebtedness of Bate to the firm $44,735.74. The plaintiff did, indeed, charge, in general terms, that Eeed had committed other frauds similar to this one in the Bate transaction. But no other was alleged specifically. Nor was any other proved.

The judgment asked by the complaint was, an accounting by Eeed, of all his dealings with Bate under the secret agreement, and for his profits in any similar fraudulent transactions with other parties. The plaintiff also presented a general prayer for relief, that the sale be set aside, that he have an injunction, and a receivership of all the firm property. But the only specific ground alleged in the complaint for any recovery was this alleged fraud in the transactions with Bate.

In this connection the following finding of fact made by the learned trial judge and incorporated in the interlocutory judgment, is very material, viz.:

“ XXI. That the material thing for the plaintiff to be informed of was the relation of Reed to Bate, because it was upon that relation and its nature that the value of the claim against Bate depended.”

The failure to disclose such relation constitutes, therefore, the only ground which entitles the plaintiff to any relief whatever, and all the conclusions of law made by the learned trial judge and the interlocutory judgment granted by him, hinge upon such failure. The conclusions of law referred to are as follows, viz.:

“ 1. That the plaintiff is entitled to have the said sale by him of his interest in said firm and business on the 4th day of August, 1876, set aside and declared void.

“2. That the defendants account to the plaintiff in respect to the partnership assets and liabilities of said firm of Charles White & Co.

“ 3. That there should be a reference to take such accounting, and to take and state the accounts as. between the parties to this action.

“4. That in such accounting the defendant Reed should be charged with the values of the several deliveries of merchandise made by the firm of Charles White & Co. to John J. Bate on and after June 15, 1872, and interest thereon from the dates of deliveries to the date of accounting in this action and be credited with all payments by John J. Bate to Charles White & Co. after June 15, 1872, and interest thereon from time of payment to date of account in this action.

“Upon the accounting the defendants are not, nor is either of them, chargeable with the indebtedness of $24,722.71 existing in favor of Charles White & Co. against John J. Bate on the 24th day of May, 1872, nor with any part of such indebtedness.

“ On such accounting the plaintiff should be charged with all sums of money withdrawn by him from the firm of Charles White & Co. in August, 1876, or paid to him by that firm, and charged also with the value of all property withdrawn by or transferred to him by said firm or by the defendants at that time.

5. That the plaintiff, George W. White, recover against the defendant, Horatio Reed, his costs in this action.”

The interlocutory judgment, after reciting all the facts found and the foregoing conclusions of law, is as follows, viz.:

“ Now after hearing Mr. George H. Adams for the plaintiff, and Mr. F. N. Bangs for the defendants, it is adjudged and decreed as follows:

“ I. That the said sale by the plaintiff of his interest in said firm and business on the 4th day of August, 1876, be and the same is hereby set aside and declared void.

II. That the defendants account to the plaintiff for the disposition by them of the partnership assets of said firm of Charles White & Co., which were in their possession on said 4th day of August, 1876, and also that an accounting be had between the parties to this action in respect to their several interests in said assets or the proceeds of them, or in the amounts for which defendants may be chargeable in their disposition of them.

III. That to that end Hamilton Cole, Esq., counselor at law, residing in the city of New York, is hereby appointed sole referee to take and state an account of the assets and liabilities of the said firm of Charles White & Co., existing on the 4th day of August, 1876 ; that said referee do make an inventory of such liabilities and assets existing on that day ; and that on such accounting the defendants do file with the said referee an account and inventory of all such assets existing on that day and of the liabilities of said firm on that day.

That the referee is directed to ascertain and determine what were the obligations of defendants to the plaintiff in disposing of the partnership assets, or any of them, after the execution of the transfer of the plaintiff’s interest which has been by this decree set aside, and the amounts with which the defendants may be chargeable by reason of such disposition.

That in such accounting the defendant Eeed be charged with the values of the several deliveries of merchandise made by the firm of Charles White & Co. to John J. Bate on and after June 15, 1872, and interest thereon from the dates of deliveries to the date of accounting and be credited with all payments by John J. Bate to Charles White & Co. after June 15, 1872, and interest thereon from the time of payment to date of account in this action.

That upon the accounting, the defendants are not nor is either of them to be charged with the indebtedness of f24,722.71, existing in favor of Charles White & Co. against John J. Bate, on the 24th day of May, 1872, nor with any part of such indebtedness.

That on such accounting the plaintiff shall be charged with all sums of money withdrawn by him from the firm of Charles White & Co., in August 1876, or paid to him by that firm, and charged also with the value of all property withdrawn by' or transferred to him by said firm or by defendants at that time.

“ That the referee state an account between the parties to this action in respect of said partnership assets and also partnership* liabilities and of such amounts, if any, in which each may be liable or interested by reason of the premises; and that said referee ascertain and report to this court whether any of the property of said firm remains unconverted into cash and whether either of the parties is indebted to the other by reason of property appropriated or cash withdrawn or received, and what is the amount of such indebtedness; that the plaintiff have leave to surcharge and falsify the account so to be filed by said defendants; that upon the coming in and confirmation of the report of the referee either party may bring this cause to a hearing at a special term of this court on due notice and move for judgment thereon, and meanwhile either party or the referee has leave to apply to the court for further directions at the foot of this judgment. Nothing in this judgment contained shall prevent either party from preferring before the referee nor prevent the referee from passing upon when preferred, any claim by either party to credit in his own favor or to debit against any other party in addition to the specific sums herein above particularly directed to be charged or credited.”

Upon the accounting had in pursuance of this interlocutory judgment, the referee awarded to the plaintiff one third of the profits of the business carried on by the defendants for nearly eight years after the dissolution agreed upon, viz.: from August 4,1876, to June 4,1884, together with interest on plaintiff’s nominal capital of $70,818.40, as it stood on the books of the firm at the time of the dissolution, less the sum of $27,000, received by him in checks and notes at the time of the dissolution, the whole resulting in a judgment of over $100,000, which the referee gave against White as well as Reed.

I fail to see how this result can be sustained. True, no discrimination can be made between the defendants, because the referee, upon what must be deemed to be sufficient evidence, has made the following finding of fact, viz.:

“ Twentieth. The defendants have produced and filed before the referee from time to time statements of accounts purporting to show the assets of the said firm as of July 1, 1876, and purporting to show the disposition of the same by the defendants. In said accounts the defendants have not called upon the referee to determine their rights as between the defendants themselves, but have stated and assume that their rights and obligations should be consolidated and said account prepared only to show the rights and obligations of the defendants to-, gether as against the plaintiff.”

But even as against Reed the judgment goes far beyond what under all the circumstances is equitable, for even where there has been a long continued wrongful use of trust moneys by a party having full knowledge, equity will not give more than an equitable compensation for the moneys wrongfully used.

The judgment is sought to be upheld upon what is assumed to have been decided by the court of appeals in King v. Leighton, 100 JST. Y. 388, but on a careful examination that case does not support plaintiff’s contention. True, in the course of his reasoning, Ktjgeb, Ch. J., who delivered the opinion of the court, refers to thg doctrine laid down by text writers and enforced in reported cases, to the effect that surviving or solvent partners have a right to the possession and control of the assets only for the purpose of satisfying the liabilities of the firm and turning the effects into money in the manner most advantageous to the interest of all concerned, and that if they delay closing up the affairs of the firm and paying off the share of the deceased or bankrupt partner, they are not only liable to an accounting with respect to the completed business and as to all profits thereafter made upon the unfinished contracts or enterprises of the firm, but, at the option of the representatives of the deceased or bankrupt member, may be held further liable for any profits realized from new business entered into and carried on with the assets of the firm. But the decision actually made established only that the plaintiff was entitled to share in the profits on the unfinished contracts held by the firm at the time of the dissolution.

Now, from the proposition which is well established, that in a proper case a liability may be imposed for profits realized from new business, it does not follow that such liability must or should be imposed in every case. The fact is that the doctrine relating to a possible liability for profits realized from new business, is the outgrowth of the decisions of numerous cases. A great many have been cited by the counsel for the respective parties and extensive references were made to the statements of text writers upon the subject. All these citations and references have received due attention, but a notice of them in detail would answer no useful purpose here. The most convenient reference which is sufficient for all present purposes, is to Lindley on Partnership, 4th ed., pp. 979 and 980, where the result from the authorities is summarized as follows, viz.:

“ Assuming that a person is entitled to an account of profits made by the use of his property in trade, it is obviously often extremely difficult to ascertain these profits. To take the ordinary case of surviving partners continuing to trade with the capital of a deceased partner, great difficulty will be found in arriving at the share of profits to which the executors of the deceased are entitled. It is very easy to say they can be calculated by the rule of three—as the whole capital is to the whole profits—but this assumes that the profits in question have been made by the capital only. Profits, and very large profits, may be made by skill and an extensive connection, with little or no capital, and even if there be capital, the profits may be attributable less to it than to other matters and it may be impossible to determine with any precision the extent to which the capital has contributed to the realization of the profits obtained. Special inquiries on this subject, therefore, are almost always necessary, and if it can be shown that, having regard to the nature of the business or other circumstances, the profits which have been made cannot be justly attributed to the use of the capital or assets of the late partner, his prima facie right to share such profits will be effectually rebutted. The extent of the liability to account for subsequent profits was elaborately discussed by the late Y. C. Wigbam in Willett«. Blanford, and the conclusion arrived at by him was that no general rule could be laid down upon the subject and that every case must depend on its own circumstances. The nature of the trade, the manner of carrying it on, the capital employed, the state of the account between the late partnership and the deceased partner, at the time of his death, and the conduct of the parties after his death, may materially affect the rights of the parties. This conclusion of the vice-chancellor was entirely in accordance with previous decisions-, and has been approved by subsequent judges, and in conformity therewith several cases have since been decided, in which profits acquired after the death of a partner were held to belong wholly to those by whose labor they had been made,” etc.

And on p. 990 the same author says: “The law upon the subject under consideration is still in an unsettled state. Undoubtedly a person ought not to be permitted to retain, for his own use, gains acquired by the unlawful employment of another’s property ; and it would certainly not be conducive to justice if there were no power to compel a discovery of the amount of the gains so made, and payment of the amount by the wrong-doer. At the same time, owing to the extreme difficulty of taking an account of subsequent profits, so far as they are attributable only to one particular source, the tendency of the courts in modern times appears to be rather in favor of not exercising than of exercising the power alluded to, except in cases of gross fraud or breach of trust.”

The true rule to be extracted from all the authorities upon the point now under consideration, may be summed up to be as follows:

Profits may be allowed in cases of the wrongful use in new enterprises by surviving or continuing partners of the capital of the deceased or retired partner whenever it is made to appear that the use of such capital was a breach of trust or a gross fraud upon the deceased or retired partner, and that the allowance of such profits is under all the circumstances equitable. But whenever upon the special facts of a case, such allowance is not equitable, the accounting must be confined to the completed business of the firm at the time of the dissolution, and to such profits as were made after the dissolution upon the unfinished contracts or enterprises of the firm, and in addition the surviving or continuing partners are to be charged with interest upon the deceased or retired partner’s share of the surplus existing after the discharge of the partnership liabilities. Moreover they must bear all the losses sustained by or on account of new enterprises.

On the application of this rule to the facts of the case at bar, it will be found that the essential elements which would warrant a recovery of profits on new business, are wanting in this case.

The dissolution was a voluntary one, and all the parties to it had abundant means. There is no room for the inference or suggestion that the plaintiff agreed to accept less that he would otherwise have done, because the defendants were, not of sufficient financial ability to respond to him for his full share. There was an estimate made of plaintiff’s share and in the making of that estimate there was no fraud except the failure of the defendants to disclose Beed’s relations to Bate. But Seed’s transactions with Bate had taken place and had been completed and brought to an end years before the dissolution of the firm, and the balance due from Bate as it stood upon the books, had constituted a dead loss in fact for years. According to the estimate as made, and which was made upon the basis that the indebtedness of Bate was wholly uncollectible, the interest of the plaintiff in the assets of the firm was fixed at $57,000. Of this sum the plaintiff took about $27,000 in money and notes bearing interest, which were subsequently paid, and about $30,000, by taking a one third interest in certain real estate, which interest was taken at an agreed valuation of $30,000. In the arrangement culminating in the taking of such interest, there was not a particle of fraud or deception. That the plaintiff failed to call for a deed and that years thereafter he re-transferred said interest to the defendants at a less figure, can make no difference as long as he received his share of the income from said real estate for the period during which he was the equitable owner. Upon the branch of the case now under consideration the plaintiff, for the reasons stated, must therefore be held to have received both the $30,000 and the $27,000, and as a necessary corollary he must be deemed to have withdrawn all his capital as it was then and there estimated, and, although the defendants remained liable to him on account of the Bate affair, none of plaintiff’s capital remained in fact in defendants’ business. It therefore cannot be held that his capital contributed to the making of profits in the subsequent new transactions. But the plaintiff not only withdrew all his capital, strictly so called, but he also took away all of his time, skill and labor which he had theretofore given to the business of the firm in Chicago. He consequently took elsewhere his chances of profits on his property and his chances of reward for his services, and thereafter he never shared any of the burdens of defendants’ business. Nor did he ever offer to share such burdens or to allow the defendants to participate in some way in the profits of his own business. But even if the amount which the plaintiff should have received over and above the $57,000, were treated as so much capital left by him in the hands of the defendants, there is no evidence in the case showing that it in any wise contributed in some substantial way to the making of the profits on the new business subsequently done by the defendants.

From the examination so far made it sufficiently appears that the allowance to the plaintiff of profits on the new business was erroneous. His claim to profits should have been confined to such as were made by the defendants upon the unfinished contracts and enterprises existing at the time of the dissolution. His claim to interest will be hereinafter referred to.

This conclusion has been reached without reference to the limitations placed upon the power of the referee by the interlocutory judgment. The concluding part of that judgment, it is true, is an amplification of the powers specifically conferred, but even with that I cannot construe the said judgment as a grant of power to award profits on the new business. In view of the conelusion already announced, however, this question has lost its importance.

On the point relating to the determination of plaintiff’s interest in the firm assets as such, the interlocutory judgment, taken as a whole, is perfectly clear and consistent. It directed the referee to ascertain and determine the value of such interest as of the day. of the dissolution, and this meant the actual value. Upon such actual value which remained unpaid, the plaintiff is entitled to interest, but not on the nominal value. It was therefore another error of the referee to start in all his calculations with the assumption that the plaintiff left in the firm a capital of $70,818.40. This was nominally so, so far as the state of the books immediately preceding the dissolution was concerned. In point of fact the plaintiff should have been immediately charged with the $57,000 received at the time of the dissolution as hereinbefore stated. To deduct only $27,000 and then give him interest on the balance without considering at the same time the element of bad assets of which there were some outside of the Bate account, and yet charge the defendants with interest from the same time on the amount due by them on account of the Bate transaction, as the referee did, involved in part a charge for double interest, and upon the whole awarded to the plaintiff so much more for interest on his share than he is entitled to, that the final result arrived at by the referee cannot be sustained.

. The errors already noticed call for a reversal of the judgment. The points of counsel also refer to some other matters which have not been noticed. It is deemed unnecessary to refer to them specifically because they are of minor importance than the questions discussed at length and are not likely to lead to an erroneous result hereafter. It should be understood, however, that no opinion concerning them is intimated.

The judgment appealed from should be reversed upon the facts as well as the law, with costs to the appellants to abide the event, the order of reference vacated, and a new reference ordered to determine in conformity with the views herein expressed the matters required by the interlocutory judgment to be determined.

Ingraham, J., concurred.


author: By the Court.—Dugro, J.

text:
    RICHARD R. DISBROW, Respondent v. SAMUEL E. HARRIS, Appellant.

      Contracts—Merger of former agreement in later—Provision of contract for sale of house to deliver in good condition—Effect on, of acceptance of deed with contemporaneous agreement providing only for certain items of work.

    Defendant, by an agreement in writing, agreed to sell plaintiff a certain house and lot, the house to be delivered in good condition, and the deed to be delivered on April 28, 1887. Defendant paid the earnest money; assumed a mortgage on the property, and when the deed was delivered, paid the cash balance of the purchase price, except $350, retained under the following agreement signed by both parties: “ On closing contract between Richard B. Disbrow [plaintiff] and Samuel E. Harris [defendant), there has been allowed to Mr. Harris $50, for grates (not in), and Mr. Harris has retained $300, to secure completion of sidewalks and iron gate on stoop, and when done, said Disbrow is to receive the $300.” Plaintiff, having completed sidewalks, etc., brought this action to recover the $300, unpaid on the contract. Defendant set up a counter claim founded upon an alleged failure to perform the agreement to deliver the house in good condition, on the 28th day of April, 1887, at the same time the deed was to be delivered.

      Held, upon consideration of the intent of the parties, gathered from the contents of all the instruments, the pleadings and evidence, that there was a merger of the preliminary contract of sale in the later instruments, which ■ the parties evidently designed as a complete performance of the entire original contract; and that the trial judge did not err in refusing evidence as to the bad condition of the premises, in support of the counterclaim.
    Before Truax and Dugro, JJ.

      Decided April 2, 1888.

      Appeal from a judgment entered upon a verdict directed ior the plaintiff.
    Action upon contract to recover $300 unpaid purchase money, retained by defendant until plaintiff should complete the walk and an iron gate, belonging to the house sold.
    The plaintiff, on March 28, 1887, by an agreement in writing, agreed to sell defendant a house in Ninety-seventh street for $21,000. Defendant paid the earnest money, assumed a mortgage on the property, and when the deed was delivered paid the cash balance still due, with the exception of $350, which he retained, and at the same time the agreement following was signed by both parties : “ On closing, contract between Richard B. Disbrow and Samuel E. Harris, there has been allowed to Mr. Harris $50 for gates (not in) and Mr. Harris has retained $300, to secure completion of sidewalks and iron gate on stoop, and when done, said Disbrow is to receive the $300.” The original contract of sale contained the following provisions: “ The party of the first ¡Dart (plaintiff) shall deliver said house in good condition and put in three new grates.....which deed shall be delivered on the 28th day of April, 1887, at 12 o’clock, m.” At the trial, proof was allowed of what was done at the time of the closing of the contract, when the deed was delivered and the agreement above set forth executed, but the defendant was not allowed to show by oral evidence that the premises conveyed were not then in good condition.

      Jacob F. Miller, for appellant:
    I. The contract between the parties contained a provision that the house then in process of construction should be delivered in good condition.
    II. This provision was not merged in the deed which was given by the plaintiff to the defendant. In Coke upon Lift., 338b, it is said: “ Mergers were never favored in courts of law and still less in courts of equity.” They are never allowed unless for special reasons and then only to preserve the intention of the parties. 15 Vin. 362A, 5; Phillips v. Phillips, 1 P. Wms. 44; Forbes v. Moffatt, 18 Ves. 389; James v. Johnson, 6 Johns. Ch. 417, 423; Atwood v. Carpenter, 27 Barb. 639-644. The plaintiff, by a contract in writing and under seal, agreed to deliver to the defendant a certain dwelling house, in good order, for the consideration in said contract expressed. The house was delivered and the consideration paid by the defendant. The consideration for the payment of the money is not entire and indivisible so that it is incapable of being apportioned by the jury. The defendant took the house, as he had a right to do, if he pleased, but it was not in good order. In other words, the consideration for the plaintiff’s covenant was divisable and the damages arising from the breach can be fixed by a jury. Broom v. Eyre, 1 H. Bl. 273, note a; Pardage v. Cole, 1 Saund. 320, n. The defendant could have maintained an action against the plaintiff for his breach of the agreement to “ deliver the house in good order,” without making any other averments. The plaintiff could not maintain an action for specific performance if the defendant had failed to pay purchase price, nor can he maintain this action without showing performance on his part of the said agreement. In this view it is not necessary to look beyond the agreement, to its performance, in order to ascertain its character. Pardage v. Cole, supra; Parmlee v. Oswego & Syracuse R. R. Co., 6 N. Y. 74. The defendant could have elected to rescind the contract on the day set for closing if he had known of the defects in the house complained of, if he had chosen to do so? The good condition of the house was a condition precedent. The following are leading authorities for defendant: Witbeck v. Waine, 16 N. Y. 532; Morris v. Whitcher, 20 N. Y. 41; Davis v. Lottich, 46 N. Y. 393; Murdock v. Gilchrist, 52 N. Y. 242; Smith v. Holbrook, 1 Sheldon 474. In Hill v. Syracuse, B. & N. Y. R. R. Co., 8 Hun 299, the court said : “ Courts do not favor the doctrine of merger where it would violate the intention of the parties, and work injustice.” See also McGregor v. Board of Education, Daily Reg., Jany. 23, 1888.
    TIT. It was incumbent upon the plaintiff to show affirmatively that it was intended by the parties that the deed. should be regarded as a complete execution of the contract. The defendant had made out a prima facie case. The burden of proof was thereupon shifted to the plaintiff. See foregoing cases.
    IV. The fact of plaintiff’s imprisonment could be shown by himself. It was not necessary to produce the record of conviction. § 832, Code Civ. Proc.

    V. The defects complained of were all concealed, and could not have been detected without extended and expert examination. The plaintiff at the time of delivery of the deed represented to the defendant that the work which he had promised to do had been done. The defendant had a right to rely upon those representations that the conditions of the contract had been performed. The plaintiff himself does not claim that this work had all been done even at this time. The defendant’s offer to show the condition of the premises should have been allowed, since it tended to prove a breach of this contract. Otherwise the plaintiff is getting an advantage from his own wrong. Furthermore, the defendant took all precautions to find out the defects. The law does not demand impossibilities. Lex non cogit ad impossibilia. Broom's Legal Maxims, p. 242.

      R. P. Lee, attorney, and Frederic W. Hinrichs of counsel, for respondent.
   By the Court.—Dugro, J.

(after stating the facts, as above)—The question to be determined on this appeal is whether the court was justified at the trial in holding that the preliminary contract of sale became merged in the later instruments. This question is one of construction, as to the intent of the parties to be gathered from a consideration of the entire contents of all the instruments, if this be possible. That in the case under consideration, it was the intention of the parties that the house should he delivered in good condition at the time fixed for the delivery of the deed, seems evident. The defendant undoubtedly so understood the agreement to be, for in his answer he says, On March 28, 1887, he (defendant) exacted from the plaintiff an agreement, and the plaintiff agreed to deliver said house in good condition, and to do so on the 28th day of April, 1887.” Now as it was intended that the delivery of the house in good condition should be contemporaneous with the ■ delivery of the deed, the provisions of the preliminary contract looked to a complete performance by both parties at the time fixed for the closing of the contract, and, therefore, the delivery and acceptance of the deed and the execution of the later written agreement can fairly be supposed as designed by the parties to be a comnlete execution and consummation of the entire original contract, and' accepted as such. It certainly would be unreasonable to suppose that it was the intention of the parties that something further should be done by either, than as provided by the instruments last executed. The learned chief justice was fully justified in inferring from all the circumstances of the case that the parties intended these instruments to be a complete and final settlement of the transaction between them, and his application of the general rule that when a deed is accepted the original contract is merged, was proper.

1 take it to be- the rule of law that, even where there are stipulations in a preliminary contract for the sale of land of which the conveyance itself is not a performance, the true question must be whether the parties have intentionally surrendered the stipulations. The evidence of that intention may exist in or out of the deed or contract between the parties. If plainly to be gathered from a consideration of the entire contents of the instrument, the evidence is decisive. Although the case under consideration may not be such an one as properly calls for the application of this rule yet, even so, it is plainly to be gathered from a consideration of the contents of all the instruments in evidence that the provisions of the contract of sale were intended to be merged in the deed and contemporaneous agreement upon their delivery.

-Nothing inconsistent with the assumption of a complete performance of the original agreement is apparent from the two later instruments. Reference is made in them to all the matters upon which the preliminary contract bears, and, aside from the instruments and pleadings, that the defendant expected and required a complete performance at the time of closing the contract, appears from his own testimony. He says, “ I took the title on Mr. Disbrow’s assurance that the work had been done; otherwise I would not have taken that title.”

The defendant neither requested nor was he refused an opportunity to examine the house. He appears to have relied partly on the representations of the plaintiff and partly on information otherwise obtained,"in determining its condition, and only when he was satisfied of its condition, so far as he deemed necessary, did he close the matter.

Parties may enter into covenants collateral to the deed and cases may arise in which the deed would be regarded as only a part performance of the contract, where the provisions of the instruments clearly manifest such to have been the intention of the parties, but it cannot be fairly claimed that such an intention is indicated by the instruments in evidence or by the circumstances of the present case.

The plaintiff may have been induced to accept the deed and enter into the later agreement by false representation of the plaintiff. If so, no right which he may have to recover damages sustained by reason of such representations is prejudiced by the judgment appealed from.

The rulings of the learned chief justice upon the admission of evidence were proper applications of the familiar rule, that oral evidence is inadmissible to contradict, supplement or vary the terms of a written contract.

Neither § 832 of the Code of Civil Procedure nor any other rule of law, warranted the exception taken to the ruling sustaining the objection to the question, “Have you been arrested in connection with the building of this house.” Arrest is not conviction.

Judgment affirmed.

Truax, J., concurred.


text:
    GOLDEN GATE CONCENTRATOR Co., Respondent v. JOHN CAPLICE, Appellant.

      Sale on trial—retention of property beyond time fixed fir test.

    In sales on trial, the failure to return the goods within the time specified for trial makes the sale absolute.
    In the case at bar, the contract and extension of time to test, show that it was the intention of the parties that on or prior to December 1st, the machines should be paid for or returned; that if within that time defendant did not desire the machines, he was to properly box them as plaintiffs’ property, and deliver them subject to its order, at the nearest railroad station; that this was not done, but the machines were without further extension of time, retained by defendant and used, either in testing them, or for purposes of his own, till the following February, when plaintiff first learned that defendant did not desire them. It also appeared that, in proper time, defendant was notified by plaintiff that it considered the sale absolute.

      Held, that by his acts, defendant had made his election, and must be assumed to have accepted the machines, as though they had answered satisfactorily every test imposed.
    Before Sedgwick, Ch. J., and Dugro, J.

      Decided April 2, 1888.

      Appeal from judgment for plaintiff directed by the court.
    Action to recover the contract price of two machines known as concentrators.
    The facts are as follows: On July 31, 1885, plaintiff was owner of two machines known as concentrating tables, which are used for separating valuable ore from waste matter. The tables at this time were in the possession of the firm of Murphy, Churchill & Buchanan, having been delivered under a conditional contract of sale, the title to vest only when the tables were paid for. The defendant desired to purchase the machines, and Murphy, Churchill & Buchanan were willing that he should, as they were unable to pay a certain balance due on them, which the plaintiff was desirous of obtaining. At this time, July 31, 1885, plaintiff made the following written offer, as a proposed agreement and it is the only agreement between the parties, and their respective rights and liabilities grow out of and are founded upon it:—
    “ Boston, July 31st, 1885, Mess. Benj. Tatham, John Caplice, A. D. Churchill and I. Geniro Murphy, and Murphy, Churchill & Buchanan and Capital Milling Co., Gents:—In settlement of the matter of the concentrators made by us and now at Ten Mile (Rimini), Montana, we make following proposal, which will be binding upon your return of this paper or a duplicate of it, with an acceptance of its terms signed with your several signatures, within ten days from the date hereof. You are to be at liberty to start the concentrators and make a thorough test of them, under the supervision of William A. Leonard. Within sixty days from this date if they shall have proved to be good and effective machines, and to do your work of concentrating ores as well and economically as any concentrating machines aré now doing similar work upon similar ores in Montana, Mr. Benj. Tatham and Mr. John Caplice are to send us a check for the amount which Murphy, Buchanan & Churchill agreed to pay and have not paid for the machines with interest at 6 per cent. If the machines do not so prove you are to deliver them properly boxed, subject to our order and as our property, at the nearest railroad station to your mines in Montana. Upon receipt of the check, we are to give Messrs. Tatham and Caplice a bill of sale of the machines accompanied by a license to use them at their mines, and an agreement to substitute for this license at any time, upon demand, a license to run them at any designated spot, not situated within territory for which we shall have given exclusive license. Golden Gate Concentrator Co., by Horace P. Tobey, Pres.”
    “We accept the above proposal with the understanding that if at the expiration of ‘the sixty days named, W. A. Leonard shall certify that circumstances have prevented a satisfactory testing of the machines, an extension of time of thirty days shall be given upon his (Leonard’s) request therefor. Benj. Tatham, John Cap-lice, I. G. Murphy, A. D. Churchill, The Capital Milling Co., per A. D. Churchill, Prest.”
    This proposed contract was mailed about July 31, 1885, to Benjamin Tatham, John Caplice and the others, and received back signed by them early in August, 1885. William A. Leonard was from a time prior to July 31, 1885, until December 30th of that year, in the employ of the defendant as superintendent of his mill. In pursuance of a request made by Leonard the plaintiff extended the time within which a test should be made to December 1, 1885. No other extension of time was given ór requested. The machines were retained by the defendant after December 1st. In his testimony at the trial he says, “ The work of concentrating and testing ores did not actually begin until about the first of December, or the last week in November, the test continued until somewhere close to January . . . . the tables were in operation to the first part of January”
    It does not appear that the plaintiff was informed until February 1, 1886, that the machines had not proved satisfactory under the contract,. nor does it appear that the machines were boxed until the summer of 1886. It does not appear that the tables were ever delivered subject to the plaintiff’s order, and as its property, or otherwise, at the nearest railroad station to the mines of defendant in Montana. The machines are now at defendant’s mill in Montana, the plaintiff having in proper time notified defendant that he considered the sale absolute.
    At the trial, the learned judge, having excluded evidence offered by defendant tending to show that the machines could not concentrate ores as well and as economically as any concentrating machines then doing similar work upon similar ores in Montana, said: “ It was your (defendant’s) duty to return those machines on the first day of December or pay for them,” and thereupon he directed a verdict for the plaintiff for the amount claimed, it having been admitted by the answer that the amount due and unpaid by Murphy Buchanan & Churchill for the machines was as claimed in the complaint.

      Paddock & Cannon and De Witt C. Brown, for appellant.

      Thompson, Ackley & Kauffman, and J. Edward Ackley, for respondent.
   By the Court.—Dugro, J.

(after stating the facts as above)—A reading of the contract, and extension of time to test, clearly shows the intention of the parties to have been that on or prior to December 1st, the machines should be paid for or returned. During the month of December, they were in use by the defendant. Whether he was testing them or using them for other purposes is immaterial. He was exercising the rights of an owner over them. He had no right to use the machines for any purpose after December 1st, unless he accepted them. The contract shows the intention of the parties to have been that within the period of time fixed for the test, if defendant did not desire the machines, he was to properly box them as the plaintiff’s property, and deliver them subject to its order, at the railroad station nearest the mines. This was not done, but the machines were retained by the defendant and used for purposes of his own until the February following, and at that time, it seems the plaintiff first learned that defendant did not desire them.

By his acts the defendant made his election. He had retained and used the machines beyond the time specified; he had failed for two months to signify to the plaintiff his determination to accept or reject them in the manner provided by the contract, or in any other way. He must therefore be assumed to have accepted them, as though they had answered satisfactorily every test imposed.

In sales on trial the mere failure to return the goods within the time specified for trial makes the sale absolute. Benjamin on Sales, Bennett’s Ed., § 595.

In the case of the Prairie Farmer Co., 69 Illinois Rep. 440, the suit was for a press delivered under an agreement that the buyer should have thirty days to determine whether to. keep the press or not. Scott, J., in delivering the opinion of the court, says: u On failure of the appellant within thirty days to elect whether it would keep the press or not, the right vested at once to recover the contract price.....It made no election and gave no notice of its intention; the presumption will be deemed conclusive it intended to keep the press unless it gave notice to the contrary.”

In many respects the present case is similar to that of Spickler v. Marsh, 36 Maryl'd Rep. 222. In that case defendant agreed with plaintiff to take his mower and reaper at a stated price, and try it in mowing grass, wheat, etc. If after such trial the defendant did not like the machine, he was to return it. He tried it at the harvest of 1864, but not being satisfied, agreed in the fall of that year to give it a further trial, and if not then satisfied to return it to a certain railroad station. The court said: “ The sale was one at the defendant’s option. By his agreement he was bound to return the reaper within a reasonable time after the harvest of 1865, or keep it at the stipulated price.”

The case under consideration is not one of warranty, and therefore it is immaterial whether the machines proved to be good and effective and able to do the work as mentioned in the contract.

It was the business of the defendant to determine this and keep or return them at the proper time.

Entertaining the opinions stated, I cannot- see that error occurred at the trial; the judgment is therefore affirmed, with costs and disbursements of appeal.

Sedgwick, Gh. J., concurred.


author: By the Court.—Truax, J.

text:
    GEORGE A. RENWICK v. THE NEW CENTRAL COAL Co., Respondent.

      Attorney—Liability of for costs in action by non-resident.

    The attorney for a non-resident plaintiff who has filed no security for costs is liable therefor to the extent of $100, under § 3278, Code Civil Procedure, though he was not plaintiffs attorney when the action was begun.
    Before Sedgwick, Ch. J., and Truax, J.

      Decided April 2, 1888.

      Appeal by plaintiff’s attorney from order directing plaintiff’s attorney to pay costs.
    The facts appear in the opinion.

      Henry G. Atwater, appellant in person.

      Eugene D. Hawkins, for respondent.
   By the Court.—Truax, J.

The plaintiff was a nonresident and began this action without security for costs. After the commencement of the action, the appellant, Atwater, was substituted as the plaintiff’s attorney in the place and stead of the person who was plaintiff’s attorney at the time the action was commenced. The complaint was dismissed at the trial and a judgment for costs was entered a-gainst the plaintiff. This judgment was for more than $100. Execution against the property of the plaintiff was issued thereon and was returned unsatisfied. The defendant then made his motion to compel Mr. Atwater to pay $100 on account of such costs. The motion was granted and Mr. Atwater appealed from the order granting the motion.

It was claimed by the appellant at the argument before the general term, as had been claimed by him at special term, that he should not be compelled to pay said sum of $100, because the action had been commenced in this state by the non-resident plaintiff at the request of the defendant, and that for that reason the defendant was estopped from invoking the aid of § 3278 of the Code of Civil Procedure.

This statement of facts was denied, and the question was, we think, rightly decided at special term.

We are also of the opinion that the fact that the appellant was not the attorney for plaintiff at the time the action was commenced, does not affect his liability for costs under § 3278 of the Code. The liability of an attorney for costs against a non-resident plaintiff is a con-tinning one. It begins at the time the action is begun and continues until security for costs is given, and if no such security is given, it runs as well against the person who is attorney for plaintiff at the time the judgment is obtained, as against the person who was such attorney when the action was commenced.

The only way that an attorney for a non-resident plaintiff can relieve himself of such liability is by seeing to it that the plaintiff gives the security required by § 3278.

The order appealed from is affirmed without costs.

Sedgwick, Ch. J., concurred.