text:
    WILLIAM G. BURNETT, Plaintiff and Appellant, v. G. BROWN SNYDER, Impleaded with Peter O. Strang, Ammon B. Platt, Philip C. Lockwood, and Ammon Clark, Survivors of Ammon Platt, Defendant and Respondent.
    I. Partnership.

    1. What will not bender one liable as a partner.

      (a) SUB-PARTNERSHIP. An agreement entered into between one partner in a firm and a third person, whereby the third person is to receive a certain proportion of such partner’s share in the profits of the firm, and pay to such partner a corresponding proportion of the losses of the firm, constitutes a sub-partnership, and does not make the third person a partner in the firm either inter sese or quoad other parties.
    1. Olause that third party is a copartner in firm. The insertion in such an agreement of a clause “that it. is hereby agreed, by and between the parties hereto, that A. B. (the third party) is a copartner in the firm of -, this day formed,” will not, if the agreement is entered into without the knowledge and consent of the other partners, make the third party a partner in the firm, either inter sese. or quoad other parties..

      Decided January 7, 1878.
    2. What will render one liable as a partner.
    1. JOINT OWNERSHIP. One who becomes a joint owner with a partner of his share in a partnership standing in his name alone, with the knowledge and consent of all the members of the firm, is liable as a partner.
    Before Curtis, Ch. J., Sanford and Freedman, JJ.
    There were three successive partnerships having the firm name of Strang, Platt & Co. ; the first commencing in April, 1863, and terminating in the last of December, 1869; the second firm of Strang, Platt & Co., spoken of as firm No. 2, and being the partnership in question in this action, commencing on the first day of January, 1870, and terminating in April of the same year by the death of Mr. Ammon Platt, one of the partners; the third firm, sometimes spoken of as the Chapman firm, commencing in the spring of 1870, and terminating on the first day of January, 1871, or the last day of December, 1870.
    This action is brought to recover moneys deposited with Strang, Platt & Co., No. 2, by plaintiff. Defendant Snyder alone defends.
    The question presented in the case is, whether defendant Snyder is liable as a partner in the firm of Strang, Platt & Co., No. 2.
    Plaintiff claims that he is. The facts on which the claim is based are in substance as follows.
    On December 31, 1869, written articles of copartnership were entered into between all the defendants except Snyder, whereby a copartnership was formed under the firm name of Strang, Platt & Co.
    About the same time a written instrument, dated December 31, 1869, was made and executed between defendants Strang, Ammon Platt, and Snyder. This instrument is set forth in the opinion. There is no evidence that either of the other defendants had any knowledge or notice of this agreement. It appears that plaintiff had been in the employ of each of these firms during the period of their respective existences.
    The defendant Snyder took no part in the conduct of the business of the firm of Strang, Platt & Co., No. 2 (or in any of the firms of that name), paid no money into it, and received nothing out of it. He was never held out to the public or to the plaintiff as a member of the firm of Strang, Platt & Co., No. 2, or of any'of the firms of that name.
    The plaintiff dealt with the said firm of Strang, Platt & Co., No. 2, and the other firms of that name, without any belief or idea that the defendant Snyder was a member of such firms or any of them.
    The referee before whom the issue was tried held that defendant Strang was not liable to plaintiff; and delivered the following opinion upon the question of his liability as partner:
    J. S. Bosworth, Beferee.—The principal question in this case is this,—was C. Brown Snyder a member of the firm of “Strang, Platt & Co.,” which was formed December 31,1869, by articles of copartnership, signed by each of the above-named defendants, except C. Brown Snyder. If he is to be deemed to have been a member of that firm, or to be liable as such to its creditors, this must result from written articles of agreement, dated the same day as the said copartnership agreement entered into by and between C. Brown Snyder, and the above-named Peter O. Strang & Ammon Platt. This last said agreement recites the fact, that all of the aboved-named defendants except C. Brown Snyder had that day formed a copartnership, “under the firm name of Strang, Platt & Co., for the purpose of doing a wool brokerage and commission business in the cities of New York and Boston, and whereas it is deemed expedient and for the interest of said firm that the aforesaid C. B. Snyder, party of the first part, should have an interest, and become a co-partner in the said firm of Strang, Platt & Co.,” and then proceeds and concludes thus, viz.: “Now therefore know all men by these presents, that it is hereby agreed by and between the parties to this contract, that the said C. B. Snyder is a copartner in the said firm of Strang, Platt & Co., this day formed, and in consideration of this agreement and for other valuable considerations, the said C. B. Snyder shall and he is hereby entitled to receive from the said Peter 0. Strang & Ammon Platt, one-third of the profits earned and received by each of the aforesaid parties of the second part from their interest in said firm of Strang, Platt & Co., and it is further agreed by the said C. B. Snyder, that he will become liable for and pay to the said Strang & Platt, an amount equal to one-third of any and all loss, that the said Strang & Platt, or either of them may sustain or be charged with by reason of their connection as copartners or otherwise with Strang, Platt & Co. It is further agreed by all the parties to this contract, that they will each and all of them do all that they can, and to the extent of their ability, to sustain, further and protect the interest of the said firm of Strang, Platt & Co., and that they shall at all proper times during the continuance of this copartnership and agreement give each other true and exact statements of the affairs and accounts of the firm. This agreement to commence with the said copartnership of Strang, Platt & Co., and to continue until the same is dissolved as provided for in the said articles of agreement, and it is further understood and agreed by the parties to these presents that they hereunto bind themselves, their heirs, executors, administrators and assigns. In witness whereof, &c.”
    There is no evidence that either of the other defendants had any knowledge or notice of the existence of this agreement. The plaintiff was employed by this firm from its commencement until it was dissolved by the death of Ammon Platt, on or about April 24, 1870. He was also employed by a firm of Strang, Platt & Co., which preceded the firm of that name, formed December 31, 1869, and he was also employed by a firm of that name formed shortly after the death of Ammon Platt, and about May 1, 1870, and continued in such employment until last said firm was dissolved. He loaned to, or deposited moneys with each of said firms from time to time, aggregating many thousands of dollars, and did not believe, until some time in 1875, that C. B. Snyder was a member of the firm now sued, or of any firm of that name. Instead of C. B. Snyder being held out to the plaintiff, or to others dealing with the firm, either by Snyder himself or by P. 0 Strang or by Ammon Platt, as being a member of this firm of Strang, Platt & Co., or in any way interested in its business, or the results thereof, there seems to have been care and caution used not to do or say anything to induce or lead any one to suspect that he was in any way interested in the firm or in the profits of its business. Hence the practical question is, what is the legal effect of the agreement between Snyder of the one part, and P. O. Strang and Ammon Platt, of the other part, of the date of December 31,1869. Omitting for the present any consideration of the words, “it is agreed . . that the said C. B. Snyder is a copartner in the said firm,” the agreement provides that Snyder shall receive and be entitled to receive from P. O. Strang and A. Platt, one-third of the profits ‘ earned and received” by each of them “from their interest” in the firm; and that he shall pay to them “an amount equal to one-third of any and all losses that they or either of them may sustain or be charged with” as such copartners.

      This is not an agreement, even if full effect be given to it according to its terms, as against everybody, that Snyder shall share generally in the profits of the firm, as profits, but only that he shall share with P. O. Strang and Ammon Platt, the profits which they may derive and receive from their interest in the firm. This does not give, or attempt to give, to Snyder any special lien on the profits of the concern. It does not give, or attempt to give to Snyder, a certain share of the whole profits, but only a specified part of a share thereof.
    “He does not receive this part of a share, nor is he entitled to interfere with it all, to say whether it shall be more or less in amount, until it has been actually set out, and the time has come for a division between him only and the partners with whom he has contracted. Of course he has nothing to do with the general firm or its creditors, or they with him; nothing with the general firm, because they have not assented to his being a partner; nothing with the creditors thereof, because he is not in fact a partner; and on the case supposed” (which is strictly true of this case) “he has npt held himself out as such, nor does he draw out of the general concern any of its profits” (Collyer on Partnership, note 1). This extract from Mr. Perkins’ note on the cases reported up to the time it was written expresses, as I think, the rule which they establish; and subsequent decisions have not modified it. Pitch -t). Harrington (13 Gray, 468), relied on by plaintiff’s counsel as a case in point in his favor, does not, in any thing decided by the court, conflict with it. The court in that case granted a new, trial, not so much because the judge erred in his charge to the jury by stat-i ng as law what was not law, as because the court thought that the statement of the rule should be accompanied with explanations which wduld more fully instruct the jury as to its correct application. Reynolds v. Hicks (19 Ind. 113), is in point, and in favor of the defendant.

      All elementary works to which my attention has been called, hold, on the facts of this case, that Snyder was not a member of the firm, bnt a sub-partner of P. O. Strang and Ammon Platt. Such an agreement as the one under consideration constitutes what is called in the books a sub-partnership. It makes the parties to it, partners inter sese; but it in no way affects the other members of the principal firm. There does not seem to be any authority for saying that, because a stranger to the firm shares in that way, and in that sense, the profits of the firm, he can be made liable to parties dealing with it, as if he were a partner therein (1 Lind. Part. 53). The clause in the agreement, viz : "it is hereby agreed by and between the parties to this contract that the said C. B. Snyder is a copartner in the said firm of Strang, Platt & Co.,” did not and could not make him such a partner. That result could not be effected without the consent of the other members of that firm. It made the three, as between themselves, members of that firm, in such sense and to such extent as the clauses of the contract in relation to sharing in the realized profits of P. O. Strang, and Ammon Platt, and paying to them an amount equal to one-third of their losses, made them all members of that firm. That made them partners as between themselves, but did not make Snyder a partner in the firm of Strang, Platt & Co.
    If this agreement had been shown to the plaintiff before he made the loan on which a recovery is sought a question might arise which the case does not now present.
    Having reached on this branch of the case the conclusion expressed, a very careful consideration of the other grounds of defense is rendered unnecessary.
    After the delivery of this opinion, a re-argument of the case was had and the referee subsequently delivered another opinion.

      J. S. Bos worth, Referee.—This action involves the question whether there can be an agreement between one of several members of a firm and a third person, when made without the knowledge or consent of the other parties, by which that one partner is to pay a specified part of the profits, which he may earn and receive as such partner, to such stranger, without such stranger being thereby made liable for all the debts of such firm to its creditors.
    Collyer, section 194, states the rule thus :

      “A stranger may share the profits of a particular partner with whom he contracts, and, not being engaged in the general partnership, will, of course, not be liable for their debts, and, upon the bankruptcy of the particular partner, may prove against his separate estate” (Vide Lindley Partn. vol. 1, p. 53, 55).
    I am not referred to any adjudged case which holds to the contrary.
    There is a class of cases which hold that a third person who receives a sum equal to a specified part of the profits, as a compensation for his services, is not liable as a partner to third persons, notwithstanding that it is intended that such third person is to be paid, and is in fact paid, this specified part out of the profits. And the rule, in its application, includes cases where, in addition to a salary, the third person is to receive a specified part of the profits, if any are made, he having nothing to do with the losses (Vanderburgh v. Hull, 20 Wend. 70).
    The reason for extending exemption from liability as partners to the creditors of the firm in the class of cases last stated, is said to be that it is an arrangement made simply in reference to the measure of compensation (Id.). Burckle v. Eckhart (Coms. 132, 138), Shackland, J. (dissenting), argued that “ the person who receives of the profits, as profits, of a concern, any amount, although in the name of wages, or compensation for services, should not be exempt from liability as partner to the creditors of the firm.”
    It is essential, to make a person liable as a partner who is not in fact a partner, that he has a right to a share of the profits of the business, as such.
    In Heimstreet v. Howland (5 Denio, 68), this rule was carried to the length of holding that the lessor of a ferry for a year, upon an agreement that the lessee should take charge of the business, pay all the expenses, and pay over to the lessor one-half of the gross receipts of the ferriage, did not thereby make himself liable to third persons as a partner of the lessee.
    In that case the lessor took half of the gross proceeds, and, of course, more than one-half of the net profits, but what he received was as a compensation for the lease of his ferry. The court held: “There must, to constitute a partnership, be a vested interest in the profits in the person sought to be charged as partner, such as would, for that reason alone, entitle him to an account in equity, against the other persons concerned in the business.” I understand the court to be here speaking of cases where a third person is sought to be charged solely on the ground of Ms right to participate in the profits. It is in the same sense, as I suppose, that the court say, in Fitch v. Harrington (13 Gray, 474), that, “An agreement between one copartner and a third person, that he shall participate in the profits of the firm, as profits, renders him liable, as a partner, to the creditors of the firm, . . but if such third person, by his agreement with one member of the firm, is to secure compensation for his labor, services, &c., in proportion to the profits of the business of the firm, without having any specific lien on the profits, to the exclusion of other creditors,” he is not liable for the debts of the firm.”

      That case is relied on by plaintiff’s counsel as directly adjudicating the rule for which he contends.
    That case states that there was evidence tending to show “that the share in the concern standing in the name of Leonard Harrington (one of the members of the firm), was owned jointly by Leonard and Samuel P. Harrington,” who was sought to be charged as a partner (Id. 468).
    It will be observed that in the statement of facts, in the charge of the judge, and in the opinion of the court, there is no allusion to the question whether this joint ownership of a share, if it existed, was with or without the knowledge and consent of the other partners. The judge charged (Id. 470), “ That if the share in the partnership concern, which stood in the name of Leonard Harrington only, was owned jointly by him and Samuel P. Harrington, then Samuel P. was liable in this action; but if there was a sub-partnership between Leonard and Samuel P., by which Samuel P. was to share in the profits of the firm to which Leonard was entitled, this alone would not make Samuel P. liable for the debts of the firm.” H the judge, in this part of the charge, and the court in its opinion, had in mind, as a fact, that the joint ownership by the two Harringtons of the share standing in the name of Leonard only, was created with the knowledge and consent of all the members of the firm, the rule that such joint ownership, with such knowledge and assent of all the members of the firm, would make Samuel P. ■ liable as a partner, no one, probably, would dispute. It would seem that such fact would make them partners inter sese. In such case each would be interested in the whole profits of the business, as profits, by consent of all the partners, and Samuel P. would have as much right to his share of the profits, as profits, to the exclusion of individual creditors of Leonard, as any member of the firm would. The court concluded its opinion that “In order to enable the jury to decide whether Samuel P. Harrington was liable for the debts of the firm of Whittemore, Harrington & Co., by reason of a sub-partnership between him and Leonard Harrington, they should have received instructions more definite and discriminating than they could derive from the mere words of Mr. Collyer. The kind of agreement which would render Samuel P. liable for the debts of the firm, and the kind of agreement which would not render him liable therefor, should have been so explained to them that they might intelligently decide whether the agreement between the two (if any was proved), was such as did or did not render Samuel P. liable as a partner for the debts due from the firm to the plaintiffs. The other instructions given to the jury seem to us to have been unexceptionable.”
    J ixdicial opinions should be read remembering that they are written in view of the facts of the case in which they are delivered.
    There is nothing in this opinion that intimates that an agreement between Leonard and Samuel P. Harrington, made without the knowledge and consent of the other members of the firm, that Samuel P. should be paid by Leonard one-third of the profits, which the latter should earn and receive as a partner, would alone make Samuel P. liable for the debts of the firm.
    That is the question in this case, whatever it may have been in that.
    Snyder had no money or capital stock in the firm ' of Strang, Platt & Co. ; the agreement between him and P. 0. Strang and Ammon Platt was unknown to the other members of the firm, and Snyder was not expected to be able, or to be permitted, to take personally any part in the conduct of the affairs of the firm, or in the transaction of its business. He was not to be, and he was not held out by himself or others as, a member of the firm. And the plaintiff, who was an employee of the firm during its continuance, had no belief or suspicion that he was a partner until over five years after its dissolution.
    On principle the case seems to me to be as strong in favor of Snyder as the cases of Vanderburgh v. Hull, Burckle v. Erhart, and Heimstreet v. Howland (supra) are in favor of the persons they held exempt from liability.
    Snyder had no property or interest in the profits of the firm of Strang, Platt & Go., as such. It is conceded that an action in his favor would not lie against the firm for an accounting. He had no power to compel an adjudication-between the members of the firm of the amount of profits earned by P. O. Strang and Ammon Platt, respectively, and as between himself and P. O. Strang and Ammon Platt he had no claims against them until they had received profits, or their right to them, as between them and their co-partners, was clear and indisputable, and then his right of action would be against P. O. Strang and Ammon Platt only. Anything which they might pay to him out of profits they had received from the firm, and after they had received it, he would not receive as profits of the firm, but'as a share of their realized profits, which, but for their agreement with Mm, they might pay to their individual creditors, or otherwise dispose of, as to them might seem meet.
    Newland v. Tate (3 Ired. Eq. N. C. 226), contains nothing in conflict with the views here expressed. In that case two persons were partners in a government contract for carrying the mails in stage coaches. After the contract was made, the defendant J. H. Tate agreed with his brother, Robert W. Tate, that the two brothers, as between themselves, became part-. ners in the original share of J. H. Tate; the whole business was under the personal care and management of the two Tates jointly, though chiefly that of Robert W., who received the fare of passengers in the coaches in which the mail was carried, the pay from the government, and made the disbursements, and finally sold the stock and contract to one Wilson, and received the contract price. The court held that the three were not copartners inter se, and. that Robert H. Tate could not be compelled to account as a partner of the plaintiff, but could be compelled, as agent, to account.
    The only passage in the opinion affecting the case in hand is this: “Thus accounting, it is true, he will not be directly liable to the plaintiff for any losses sustained, if any there be, unless by his own fault as agent; because, although he might be liable for the contracts of the firm to third persons as a partner, yet he was not a partner, as between themselves, to share the profit and loss.”
    In that case, Robert H. Tate had become owner of one-half of his brother’s interest in the capital stock, * and was to have half of his brother’s share of the profits as such, and took an active control of the business as the agent of the firm, and of course in the protection and furtherance of his own interest, and with the knowledge and consent of all the partners. That is not this case.
    Buckley v. Bramhall (24 How. Pr. 455), was decided on the ground that the statutes in relation to limited partnerships made Bramhall liable as a general partner, because he was interested in the partnership, and false statements were made in the certificate and affidavit by which the partnership was formed. They stated that Marks (the special partner) contributed $20,000 of the capital, whereas Bramhall contributed $8,000 of it.
    The facts in that case are in no wise like the facts of this case, and the question on which this case turns is not alluded to in the opinion in that case.
    The eases cited by plaintiffs upon the question of the effect of the participation in the profits of a firm where such participation was held to make him liable as a partner, are cases where such third person became entitled to share in the whole profits of the firm as profits, and might probably be said to have a property in them as they.accrued and before they were divided.
    Parsons on Partnerships, in his last edition (p. 89), after analyzing and commenting on all the cases, says (in a note): “We think the cases show that there are but two grounds upon which a man can be held liable as a partner to third persons ; . . . if he has not been held out as a partner he can be chargeable as such only when he holds that relation to profits which we believe to be the ultimate test of partnership, both inter se, and as to third persons ; that is, unless there is some ownership in or of the profits, as they accrue, and are not yet divided into portions:”
    In Wheatcroft v, Hickman (House of Lords, 9 J. Scott, N. S; 9 Eng. Com. Law N. S. 94 [*95]), Lord Cranworth said:
    “I can find no case in which a person has been made liable as a dormant or sleeping partner in which the trade might not fairly be said to have been carried on for him, together with those ostensibly conducting it, and when therefore he would stand in the position, of principal towards the ostensible members of the firm as his agents.”
    The firm of Strang, Platt & Co. was composed of five members. There is nothing in this case indicating that three of them knew C. Brown Snyder—certainly nothing that they knew of the agreement between him and P. O. Strang and Ammon Platt. These three could not be his agents, nor he in any sense their principal The business was not carried on for him, or for him together with the five. It was carried on for the firm, and by its members, and by them only. He had no property in, or ownership of, the profits as they might exist undivided. If he had a right to any part of the profits as profits, it was only to one-third of P. O, Strang’s and Ammon Platt’s realized profits, after they had received them, or they had been set apart for them.
    Unless, therefore, clauses of the contract other than those relating to the payment by P. O. Strang and Ammon Platt of one-third of their realized profits to Snyder, and his agreement to pay to each of them a sum equal to one-third of the losses with which they should be charged, create a liability which these clauses would not create, Snyder is not liable for the debt owing by the firm to the plaintiff.
    The whole contract, if practicable, should be so construed as to make its parts harmonious.
    Upon the clause stating that the parties to the contract agree that “ C. B. Snyder is a copartner in the said firm,” I made such comment in my former opinion as seems to me to be appropriate. He certainly was not a partner in the firm notwithstanding, as the other three partners had not consented to it. He did not thereby become one as to third persons, unless the agreement as to sharing in Strang and Ammon Platt’s part of their profits, when realized, made him such.
    An agreement between P. O. Strang, Ammon Platt and 0. B. Snyder, “that Snyder is a member of that firm,” and that only, he having no interest in the busi-' ness or profits, would not make himself liable as such to third persons dealing with the firm, without any suspicion or belief that he was a partner.
    The testimony of 0. Brown Snyder as to the circumstances under which he executed that agreement, and upon what solicitation he did it (and as to which he is uncontradicted) if it may be considered in construing the paper and arriving thereby at the intent of the parties, would not lead to the conclusion that any other effect should be given to this clause than that first suggested.
    The clause by which the three agreed to do all they could “ to sustain, further and protect the interest” of the “said firm,” and that each should give to the other “exact and true statements of the affairs and accounts of the firm,” seems to me unimportant. Snyder could not linow anything about the affairs of the firm, except what he might acquire from Strang and Ammon Platt, and he could not have any accounts of • the firm’s business, as such, to render, unless Strang and Ammon Platt should furnish them to him.
    In what way it was contemplated that Snyder could protect the interest of the firm is not very obvious. He might possibly loan money to it, or get its paper discounted, or borrow paper for its accommodation.
    If it had so happened that he had received anything from Ammon Platt and Strang as a part of their realized profits, or had paid anything to them to reimburse them for losses with which they had been charged, there might be accounts to be rendered by each of the three to the other; but these accounts would be accounts of those sub-partnership transactions and not statements of the affairs and accounts of the firm.
    After a careful consideration of the able argument of plaintiff’s counsel, and of the authorities on which he principally relies, my conviction is, that C. Brown Snyder was not a partner in the firm-of Strang, Platt & Co., and is not liable to its creditors, by reason of having signed the agreement between him, P. 0. Strang and Ammon Platt, of December 31, 1869.

      Martin & Smith, attorneys, and A. P. Whitehead,
      oí counsel, for appellant, urged :
    —I. The defendant Snyder must be held to be a partner, because he agreed to receive a portion of the profits, and to share the losses. The reason why sharing in the profits makes one a partner is, that he thereby deprives creditors of part of the means of payment. This is the well settled law of this State (See Manhattan Brass Co. v. Sears, 45 N. Y. 797 ; Leggett v. Hyde, 58 Id. 272). It is of no moment that the defendant Snyder did not agree to receive his share of the profits directly from all the partners, but only through the intervention of two of the partners.' The principle is the same. Snyder is just as much a sharer in the profits, although he obtains them through the machinery of two of" his partners, as if he received his share of the profits directly from the partnership fund.
    II. The position taken by counsel for the defendant Snyder, to the effect that the defendant Snyder was a sub-partner, and that he is not liable to the creditors of Strang, Platt & Co. for the firm debts, is untenable. As matter of fact, it appears that Mr. Snyder was not a sub-partner, but that he expressly agreed to become a member of the copartnership of Strang, Platt & Co., and to take a share of the profits, and bear a share of the losses, with two of the members, and to act as a partner in the business of the firm. It is not a case where a.n agreement is made with one member of a partnership for a share of his profits ; it goes iarther, and is an agreement by Snyder to become a member of the copartnership. But assuming that Snyder could be called strictly a sub-partner, nevertheless, inasmuch as he was to take a share of another partner’s profits, and to bear a share of another partner’s losses, he is liable for the debts of the copartnership. The cases cited before the referee by counsel for defendant Snyder, to maintain his proposition (with the exception of the case in 19 Ind. 113), do not touch the question whether a creditor can recover against a sub-partner, but extend only to the question of the right of a sub-partner to compel the other partners to account, and to similar questions. The precise question involved in this case has been very ably considered and decided, and the authorities quoted by the counsel for the defendant Snyder are explained and distinguished, in the case of Fitch v. Harrington (13 Gray, 468). It is there expressly held, that “ an agreement between one partner and a third person, that the latter shall participate in that partner’s share of the profits of the firm as profits, renders him liable as a partner to the creditors of the firm, although, as regards the other members of the firm, he is not their partner.” The opinion of Judge Metcalf, on pages 472, 473, and 474, is clear and thorough, is based upon principle, and would seem to be conclusive upon this question. In the case of Reynolds v. Hicks, 19 Ind. 113 (cited by defendant’s counsel), the facts will be found, on examination, to differ materially from the facts in this case. (1.) There was no agreement to become a partner. (2.) The defendant sought to be charged advanced money to a partner, who was bound to repay the money. See judge’s opinion, pp. 114 and 116, (bottom of page). (3.) The case seems to have been loosely considered. There is no argument, no reference to authorities on the turning point of the case, and the opinion of the judge does not seem to be based upon any controlling principle. In the opinion of the referee, Lindley on Partnership is cited as an authority for the defendant Snyder, but a subsequent edition of the same author states a contrary view (See Lindley on Partnership, vol. 1, 3rd London edition, p. 55). The only decision in this State touching the question is a strong authority for the plaintiff (Buckley v. Bramhall, 24 How. Pr. 455).

      Wilson & Wallis, attorneys, and William G. Wilson, of counsel, for respondent, urged :
    —I. The defendant Snyder was not a partner in the firm in question. It is abundantly shown that he took no part in the business, paid nothing into it, and received nothing out of it. It is also shown that he was not in any manner a party to the copartnership articles', although the firm was formed by a written agreement. The only ground then upon which he can be claimed to have become a partner is, that he was a party to Exhibit No. 1. If he is a partner at all, it is because this instrument makes him one. The plaintiff claims that the instrument has this effect: 1. Because it states that it is thereby agreed that Snyder is a partner; and, 2. Because of its provisions in regard to profits and losses. I. An agreement between Strang, Platt and Snyder, that the latter should be a partner in a firm already formed, and composed of Strang, Platt, Lockwood, Clark and A. B. Platt, could not be effectual to make Snyder such partner (Story on Partnership, §3, 5 ; Collyer on Partnership, § 194).
    II. Neither are the provisions in regard to profits and losses of such a character as to make the defendant Snyder a partner in the firm, or liable for its debts, even if they had been made with the knowledge and consent of three remaining members of the firm. It is now well settled, that to establish a partnership, the sharing in profits must be such as to entitle the alleged partner to an account as partner, and to a lien for his share of the profits (Catskill Bank v. Gray, 14 Barb. 471; Holmes v. Old Colony R. R., 5 Gray, 58; In re English and Irish Church, &c. Society, 1 Heming & Miller, 85 ; Cox v. Hickman, 8 House of Lords Cases, 301 ; Mollwo v. Court of Wards, Law Rep., 4 P. Council, 419, overruling Grace v. Smith). Leggett v. Hyde, (58 N. Y. 276), and Manhattan Co. v. Sears (45 Id. 797), are not authorities against this position, for, in Leggett y. Hyde it is found as matter of fact that the defendant had an interest in the profits as profits, that the agreement was that he should have an account of the business every six months, and a division was then to be made of he profits then appearing; and in Manhattan Co. v. Sears, it is said that there existed in fact—1, sharing the profits (i. e., in the profits as profits), 2, sharing in the losses (i. e., as losses of the business), 3, a right to inspect the books, and 4, a common interest in the stock (See also Vanderburgh v. Hall, 20 Wend. 70 ; Heinstreet v. Howland, 5 Denio, 68). But the contract which existed between this defendant and two of the members of the firm of Strang, Platt & Co. is one well known to the law by the name of sub-partnership, and it is well settled that the sub-partner has neither the rights nor the liabilities of a partner in the principal firm (Dig. Lib. 17, Tit. 2, § 20 ; Exp. Barrow, 2 Rose. 252 ; Bray v. Fromant, Madd. 5 ; Brain v. De Tastet, Jacob, 284 ; Frost v. Moulton, 21 Beav. 596). Fitch y. Harrington (13 Gray, 468), is claimed to be an authority against this doctrine, but is not so in fact. For the court distinctly recognize the contract of sub-partnership as one well known, and as one exempting the sub-partner from liability to creditors, and the decision goes upon the ground that the nature of a sub-partnership was not sufficiently explained to the jury. The court says: “In order to enable the jury to decide whether Samuel P. Harrington was liable for the debts of thé firm of Whitemore, Harrington & Co., by reason of a sub-partnership between him and Leonard Harrington, they should have received instructions more definite and discriminating than they could derive from the mere words of Mr. Collyer. The kind of agreement which would render Samuel P. liable for the debts of the firm, and the kind of agreement which would not render him liable therefor, should have been so explained to them, that they might intelligently decide, whether the agreement between the two (if any was' proved) was such as did or did not render Samuel P. liable as a partner for the debts due from the firm to the plaintiffs.” Reynolds v. Hicks, 19 Ind. 113, is exactly in point, and holds that a sub-partner is not liable to the creditors of the firm.
   By the Court.—Freedman, J.

—The judgment should be affirmed with costs, for the reasons contained in the opinion of the referee who tried the cause.

Curtis, Ch. J., and Sanford, J., concurred.


source: Caselaw Access Project

author: By the Court.—Curtis, Ch. J.

license: Public Domain

text:
    JOSEPH NICKERSON, et al., Plaintiffs and Respondents, v. EMIL RUGER, WILLIAM RUGER, and RICHARD GURNEY, Impleaded with Isaac Taylor, Defendant and Appellant.

      Decided, January 14, 1878.
    I. BONA FIDE HOLDER FOR VALUE OF NEGOTIABLE PAPER.
    1. Holder for value, who is.

    (a) Surrender of past-due note.
    1. The holder of a past-due note surrendered it to the maker in consideration of having previously received from him a note made by a third person, payable to him, and indorsed by him, which note was not'due at the time of the surrender.

    Heed,
    that this was parting with a valuable consideration, so as to shut out the equities between the maker and indotsefe of the latter note.
    Before Curtis, Ch. J., Sanford and Freedman, JJ.

      Appeal from a judgment for $2,050.81, entered upon a verdict in the plaintiffs’ favor by direction of the court.

      Charles S. Spencer, attorney, and of counsel for appellant, among other things, urged :
    —I. The respondents will probably contend that because they gave credit for the amount of this note upon an antecedent indebtedness, that that was sufficient consideration. Then our answer is, that that is not parting for value (Stewart v. Small, 2 Barb. 559; Atlantic National Bank of New York v. Franklin, 55 N. Y. 235 ; Weaver v. Barden, 49 Id. 286; Turner v. Treadway, 53 Id. 650; Cary v. White, 52 Id. 141; Farrington v. Frankfort, 24 Barb. 554; Stalker v. McDonald, 6 Hill, 812 ; Coddington v. Bay, 20 Johns. 646 ; Evans v. Smith, 4 Bin. 386; Root v. French, 13 Wend. 572).

    II. This case differs from the cases reported in many of the books, wherein notes were exchanged, in this : that the consideration is truly expressed on the face of the notes so exchanged (Wooster v. Jenkins, 3 Denio, 187, and cases there cited; Mickles v. Calvin, 4 Barb. 304; Mohawk Bank v. Corey, Hill, 513 ; Montross v. Clark, 2 Sandf. 115 ; 4 Duer, 331). There are a number of exceptions that have not been criticised, but the most important have. But the extinguishment of a legal demand in its original form must be shown affirmatively, and it must appear to have been an actual, and intended extinguishment (N. Y. Ex. Co. v. De Wolf, 3 Bosw. 86, 97; Farrington v. Frankfort Bank, 24 Barb. 554).

      W. W. Goodrich, attorney, and of counsel, for re-respondent, urged :
    —Upon the undisputed facts the plaintiffs were innocent holders for value before maturity. All' testimony as to equities between Taylor and the defendants, was properly excluded (Fenby v. Pritchard, 2 Sandf. 151.; Swift v. Tyson, 16 Peters U. S. 1; Collins v. Gilbert, 5 N. Y. Weekly Dig. 168; U. S. Supreme Court, Oct., 1876; Park Bank v. Watson, 42 N. Y. 490; Day v. Saunders, 1 Ct. App. Dec. 495; Brown v. Leavitt, 31 N. Y. 114; Chrysler v. Renois, 43 Id. 209 ; Paddon v. Taylor, 44 Id. 371; 1 Parsons on Bills, 196).
   By the Court.—Curtis, Ch. J.

—The defendants are sued as the makers of a promissory note, dated June 21, 1875, indorsed, by Isaac Taylor, and payable four months from date. • The defense is that the defendants were accommodation makers, no consideration passing between them and the indorser, or between him and the plaintiffs, and fraud.

The plaintiffs produced testimony on the trial, to the effect that for the note in suit they surrendered two past-due notes of Isaac Taylor, of $1,500 each. These two notes were not surrendered' until after the receipt by plaintiffs of the note in suit, which fell due October 23, 1875, and it is not shown when they were surrendered. The only witness on this subject testifies, that he cannot swear positively that they were surrendered before October 23, 1875, and that he does not positively know. Subsequently in his testimony he says he “will” swear that he delivered the two notes before the maturity of the note in suit; after that, he testifies he cannot fix any real date, and would not swear to it. The testimony of this witness is substantially that the plaintiffs surrendered the two notes that are claimed to have been the consideration parted with for the note in suit, previous to the maturity of the latter, but that he cannot specify the exact date.

The plaintiffs cite the case of Fenby v. Pritchard, 2 Sandf. 151, to sustain their position, but I find this case is overruled by the court of appeals in Barnard v. Campbell, 58 N. Y. 73, where it is mentioned in the opinion, by Allen, J., as “so at war with principles recognized as well settled by this court in analogous cases, that it cannot be regarded as well decided.”

•As the uncontradicted testimony shows that the plaintiffs surrendered or parted with the two Taylor ‘notes before the maturity of the note in suit, the plaintiffs are not to be regarded as holders of the note subject to the equities between the defendants and Taylor. Consequently the defendants were not prejudiced by the refusal of the court to allow them to show what those equities were.

The judgment appealed from should be affirmed with costs. •

Sanfóbd and Freedman, JJ., concurred.


text:
    AUGUSTIN DALY, Plaintiff and Respondent, v. CHARLES A. BYRNE, Defendant and Appellant.
    I. Trial, conduct of. Appeal.
    1. General objection.

      (a) What can be raised under on appeal.
    1. Such objections only, which, if specified, would have been decisive of the case, and could not have been met or obviated at the trial.

      Í.B. gr., In an action of libel, plaintiff, to prove malice, offered three subsequent publications by defendant, which were received under a general objection ; on appeal, defendant urged that, malice being presumed, the only effect of these publications was to enhance damages, and they, being per se libellous, could not be used for that purpose.

      Decided January 14, 1878.
    Held,
    these grounds of objection could not, under the above principle, be entertained on appeal.
    H. Litebaby bights.
    1. Drarnatitgction of a novel.

      (a) Right to. One has a right to dramatize a novel, and such . dramatization becomes his property, though there appears in it substantial similarity in plot, situation, and incidents to the . novel.
    1. Ergo. In an action of libel grounded on a charge made by defendant, that plaintiff had committed a fraud by producing a play and claiming to be the author of it, when in fact it was written by another person, arid sent to him for examination, and wrpngfully retained by him and produced as his own, evidence that the play, being a dramatization by the plaintiff of a novel, is substantially similar to the novel in plot, situation, and incident, is inadmissible.
    HI. Tbial, conduct of. Appeal.
    1. Bemarlcs of the judge in passing on questions arising on the trial.

      (a) Case on appeal must show what, to call fob a new
    TBIAL.
    1. It must show how the remark came to be made, in what way and in what connection it was called forth, so that the appellate court can see wherein, if at all, the appellant was injured.

      % Exceptions to refusals to charge.

      (a) Genebal exception baises nothing fob the appellate
    COUBT TO ACT UPON.
    1. So held of an exception in this form: “I also except to your honor’s refusal to charge our requests.”
    IV. Damages, excessive, what not.
    1. In an action of libel, $3,689.73 held not excessive.
    V. Libel.

      Vide divisions I, II, HI, supera.

    Before Curtis, Ch. J., Sanford and Freedman, JJ.
    Appeal by the defendant from a judgment for $2,689.73, entered upon a verdict in plaintiff’s favor, and also from an order denying a motion for a new trial, and also from an order denying a motion to set aside the verdict of the jury.

      Lockwood & Post, attorneys, and Louis F. Post, of counsel, for appellant, urged :
    —I. The first exception, the benefit of which is claimed by appellant, is to the admission of the article published in No. 15 of The Dramatic News. (1.) The articles in suit, if untrue, were libelous per se, and in contemplation of law malicious ; and as no proof to negative the legal presumption of malice would have been allowed, so none should have been taken to prove malice, except such as would have been also admissible in aggravation of damages. Malice, as a part of the cause of action, being already conclusively presumed (See Townshend on Slander and Libel, 3rd Edition, § 176 ; Id. 132, note 1; Daly v. Byrne, 1 Abb. N. C. 15, and note), the only effect of the proof excepted to was to enhance damages, and all the authorities are agreed that no subsequent publication can be used for this purpose (See Burson v. Edwards, 1 Carter [Ind.] 164; Forbes v. Myers, 8 Blackf. [Ind.] 74; Mix v. Woodward, 12 Conn. 292-3). (2.) The article admitted to prove malice, is itself libelous per se (See Townshend on S. & L. 3rd Ed. § 176), and to admit it in this action, is to render defendant liable to double punishment, as the same article may be made the basis of another action (Mix v. Woodward, 12 Conn. 292-3; Frazier v. McCloskey, 60 N. Y. 337; Root v. Lowndes, 6 Hill, 518; Titus v. Sumner, 44 N. Y. 266 ; Runkle v. Butler, 7 Barb. 260). (3.) If this article was considered by the jury in aggravation of damages, still it would not bar a suit upon the article itself as a substantive cause of action (Campbell v. Butts, 3 N. Y. 173).
    II. The next exceptions are to the admission of articles published in Nos. 18 and 35 of The Dramatic News, respectively. (1.) The observations in Point I. also apply to these exceptions. (3.) These articles appear on their face to have been published after the commencement of the action, and on that ground alone were inadmissible (Frazier v. McCloskey, 60 N. Y. 337).
    III. A witness was asked respecting the similarity of “Pique” to “Her Lord and Master.” The questions were objected to and excluded, and defendant excepted. Prior to the offer of this proof, plaintiff had put in evidence, under defendant’s objection and exception, and in proof of malice, an article published by defendant, charging this similarity. The questions were material, if this article was properly admitted, to prove the truth of the latter. We concede that this would be trying a collateral issue, but claim that the error was in opening .the door (See Point II.). As. the issue was raised by plaintiff, we had the right to meet it. It is the province of this court to determine which ruling was erroneous ; both cannot be correct.
    IV. The plaintiff introduced in evidence (objection and exception taken), an article from. the New York World, purporting to be a letter from “Eleanor Kirke, the reputed authoress of “Flirtation.” The letter, even if genuine, was immaterial; and if material, it was not proved to have been written by Mrs. Kirke ; and if it had been proved, it was incompetent testimony. The ground taken by the justice, that it formed a part of a letter to the defendant from plaintiff’s attorneys, is insufficient. No such letter appears in evidence, and if offered, might itself have been made the subject of objection.
    The fact, which we concede, that Mrs. Kirke’s letter in the “ World,” was referred to in a letter from plaintiff to defendant, which defendant published as a part of the libelous article (the second cause of action), has no effect. That article (the letter from plaintiff’s attorneys was a part of it) cannot be enlarged by extraneous matter, even though referred to in the article, except for purposes of explanation. No explanation was -necessary.
    Y. The defendant excepted to the refusal to admit in evidence in mitigation of damages, and in explanation of an exhibit of plaintiff, an article published in No. 24 of The Dramatic News. For the purposes of this argument, it is not claimed that this article could have been properly admitted if the plaintiff had not previously introduced in evidence an article from No. 25 of The Dramatic News. The article offered by defendant and excluded by the court, was published prior to plaintiff’s exhibit, and explains it. The two should have gone to the jury together.
    YI. In sustaining the objection referred to in Point Y., the judge said, in the hearing of the jury: “I could not admit that article in evidence. The idea that a man can one day blackmail another man in that way, and another day turn round and make another statement, will never do.” This remark may be considered in two aspects—(1) as in the nature of a charge to the jury ; and, (2) as improper influence exerted upon the jury during the trial of a cause. (1) If we consider the expression objected to as in the nature of a charge to the jury, it was erroneous (Vedder v. Fellows, 20 N. Y. 126; Burke v. Maxwell, 16 Albany L. J. 209). (2) If we consider the expression as an improper influence exerted on the jury in favor of a party pending a trial, we shall find the only questions to be: Whether any influence was exerted; whether it was improper; and, whethe. it was in favor of a party to the cause. Under the authorities this expression calls for a new trial (Thurman v. Chapman, 45 Barb. 98 ; Green v. Selfair, 11 How. Pr. 260 ; Cilley v. Bartlett, 19 N. H. 324 State v. Hascall, 6 Id. 352; Perkins v. Knight, Id. 474 ; Coster v. Merest, 3 Broderip & Bingham,, 272; Knight v. Inhabitants of Freeport, 13 Mass. 318). The case of Caldwell v. N. Y. Steamboat Co. (47 N. Y. 398), is not in conflict. In that case the jury had returned for instructions, when the circuit judge remarked that he thought there was not much difficulty in arriving at a conclusion. As the circuit judge had expressed no opinion on the merits, and given no intimation of what his opinion was, the court of appeals affirmed the judgment. The remark did not tend to prejudice either party against the other. This is the reason the appellate court did not interfere, and this is the only difference between the cited case and the case at the bar.
    VII. When the defendant had rested (having examined two witnesses upon the bad character of plaintiff), counsel for plaintiff stated that he had sent for witnesses on the question of plaintiff’s character, to which the court replied, in the hearing of the jury: “So far as regards the last witness, on the subject of character, you need not give yourself any • trouble about it.” To this remark, exception was taken. Here, again, the court erroneously invaded the province of the jury. It would have been proper to explain to the jury the principles which should guide them in weighing the testimony of a witness ; but it was for the jury alone to determine what weight to give to the testimony. The court had no right to say to the jury, or in their hearing of a witness whose testimony was pertinent to the issue, as the testimony of the witness referred to was, that they should not consider it,—and such was the clear import of the objectionable language (See authorities cited in Point VI.). It cannot be argued, to bring the case within some authorities, that this was a mere expression of opinion qualified by the judge in Ms charge when he explicitly left the question to the jury. He did leave to the jury, the question whether the defendant had proved bad character ; but he did not leave it to them to determine the credibility of this particular witness and the weight of his testimony. Taking the expression excepted to, together with the charge proper, the matter was left to the jury, in substance as follows ; You are to pay no attention whatever to the testimony of the witness Hallam, but may consider whether, upon the testimony of Brown, the other witness on character, the defendant has proved the plaintiff to be a man of bad character.
    Olin, Rives & Montgomery, attorneys, and Stephen H. Olin, of counsel, for respondent, urged :
    —I. The subsequent publications were properly received. The evidence offered was of the same character in each case, and offered for the same purpose, and the objections and exceptions were, except the first, in the same words, (a) The objections and exceptions state no ground. “ The rule is settled beyond discussion that a general objection will be disregarded” (Valton v. National Fund Life Assurance Co., 20 N. Y. 35 ; Shaw v. Smith, 3 Keyes, 316 ; McDonald v. North, 47 Barb. 532 ; Requa v. Holmes, 16 N. Y. 201; Chester v. Dickerson, 54 Id. 13 ; Levin v. Russell, 42 Id. 255; Somerville v. Crook, 9 Hun, 668 ; Frazier v. McCloskey, 60 N. Y. 339). (b) The evidence was properly received as proof of malice and in aggravation of damages. The rule is in England well settled that other publications by the defendants are admissible to show actual malice (Folkard on Libel and Slander, 459 ; Barnett v. Levy, 3 H. L. 395, 414; Barnwell v. Adkins, 1 M. & Gr. 807). And this although such publications are subsequent to the bringing of the action (Pearson v. Le Martin, 1 Scott N. C. 607. See also Macleod v. Wakley, 3 C. & P. 311; Folkard on Libel and Slander, 460; Camfield v. Bird, 3 Car. & Kin. 56; Chambers v. Robinson, Str. 691). Exactly in point is Chubb v. Westly (6 C. & P. 436). There is in this State some apparent conflict of decision (Bissell v. Elmore, 48 N. Y. 564; Thorn v. Knapp, 42 Id. 478). This case is distinguishable from Frazier v. McCloskey (60 N. Y. 337). In that case the charge made by defendant to the admission of which exception was taken was actionable per se. In the case at bar the articles complained of, or at least parts of each of them, would not have sustained an action, since they were within the bounds of legitimate criticism, while they showed, nevertheless, hostility and malice toward the plaintiff (See also Thomas v. Croswell, 7 Johns. 269 ; Defries v. Davis, 7 Car. & Payne, 112). (c) The learned judge in his'charge directed the jury on this point properly and as requested by the defendant, thereby preventing the evidence admitted from having any improper effect.
    II. The questions as to the resemblance between the play “ Pique” and the novel “Her Lord and Master” were properly overruled. The three objections were properly sustained, (a) Ho authority exists for permitting a witness to state the resemblance between two writings, neither of which is in evidence, though both are within the reach of subpoena. The questions called for statements of the contents of writings not produced, and worse still, for the conclusion of the witness in regard to them. The rule heretofore followed in similar cases, is to cause the writings to be read in court (Reade v. Sweetzer, 6 Abb. Pr. N. S. 9 ; Toole v. Young, Corylon on Stage Right, 84 ; Strauss v. Francis, 4 Fost. & F. 939, 1107). The rule allowing witnesses to compare absent objects has always been based by the courts on necessity (Hotchkiss v. Germania Ins. Co., 5 Hun, 90; De Witt v. Barly, 17 N. Y. 342; Com. v. Sturtevant, 117 Mass. 122). Ho such necessity exists here. (5) The witness was not competent to give the testimony asked for. He had never read “ Pique,” and had seen it acted only once, a year and four months before the trial. It did not appear when he had read “Her Lord and Master.” Hence no foundation had been laid for his testimony, (c) The evidence sought was wholly immaterial (Townshend on Libel, 3rd Ed. 679 ; Fitzgerald v. Stewart, 53 Penn. 343; Fountain v. West, 23 Iowa, 9 ; Andrews v. Vandeuser, 11 Johns. 38; Lamos v. Snell, 6 N. H. 413; Daly v. Munro, Sup. Ct. Sp. T 1876; Reade v. Conquest, 11 C. B. (N, S.) 479 ; Boucicault v. Fox, 5 Blatchf. 87). It was inadmissible in mitigation of damages (Dolevin v. Wilder, 34 How. Pr. 488). Nor could the evidence be offered to show the bad character of the plaintiff (Townshend on Slander and Libel, 3rd Ed. 679, § 407; Inman v. Foster, 8 Wend. 602; Kennedy v. Gifford, 19 Id. 296 ; Mapes v. Weeks, 4 Id. 659 ; Watson v. Bush, 5 Cow. 499 ; Fitzgerald v. Stewart, 53 Penn. 343 ; Fountain v. West, 23 Iowa, 9 ; Andrews v. Vandeuzer, 11 Johns. 38; 1 Greenl. on Evidence, § 55 ; Lamos v. Snell, 6 N. H. 413). id) Bor was the evidence material to prove statements in the articles from defendant’s paper not sued on. If the evidence had been offered for this purpose, counsel should have so stated on the trial, and cannot now take advantage of this ground (Cases cited, infra).

    III. The letter from the World was properly received. It had been read by the defendant, and had been referred to in the letter of plaintiff’s attorneys written after the first, and printed in the second libelous article (supra).

    IV. The article offered by defendant was properly excluded (Townshend on Slander and Libel, 3rd Ed. 687, and cases cited; Hotchkiss v. Olyphant, 2 Hill, 510).
    Y. The remarks of the court were not subjects of exception. They were proper, and the charge prevented any possible injury from them.
    VI. The damages were not excessive (Fry v. Bennett, 9 Abb. Pr. 45 ; Coleman v. Southwick, 9 Johns. 45 ; Southwick v. Stevens, 10 Id. 443 ; Knight v. Wilcox, 18 Barb. 212).
   By the Court.—Curtis, Ch. J.

—The plaintiff, a theatrical manager, sues the defendant, the editor of a weekly publication, called The New YorJc Dramatic News, to recover damages for publishing two articles, charging him with committing a fraud by producing a play, and claiming to be the author of it, when in fact it was written by another person, and sent to him for examination, and wrongfully retained by him, and produced as his own.

The answer is a general denial, except as to the publication of the first article. It also presents, as pleas in mitigation of damages, that one Wheeler had so informed the defendant, and that the publication was without malice, and that plaintiff’s character as a dramatic author was bad, and that he plagiarized from the productions of other people ; also that the play in question was plagiarized without material change from Miss Florence Maryatt’s novel, “Her Lord and Master also that he was willing to publish any statement the defendant chose to make, with the same publicity that he had given to the alleged libel.

The plaintiff offered in evidence as proof of malice four articles, subsequently published in The Dramatic News. To three of these, the defendant simply objected, assigning no ground of exception, and excepted to the ruling of the court. To the other article, being the first offered, the defendant objected to plaintiff’s putting in evidence, subsequent articles to those in the complaint, unless the plaintiffs would allow the entire matter contained in The Dramatic News, relating to the plaintiff, to go in evidence. The defendant now claims that the court erred in admitting these articles, because malice being already conclusively presumed, their only effect was to enhance damages, for which no subsequent publication could be used, and further, that the articles being per se libelous, that to admit them in this action is to render the defendant liable to double punishment, as the same articles may be the basis of another action.

It was but just to the judge before whom the trial was being conducted, that these grounds of objection should have been stated to him, so that his attention would have been specifically directed to the reasons for the defendant’s objections. If the defendant elected not to pursue this course, when he made these objections at the trial, where there was an opportunity of meeting them, or obviating them, he is too late in first assigning his grounds^ before the appellate court (Levin v. Russel, 42 N. Y. 255; Chester v. Dickerson, 54 Id. 13).

The defendant excepts to the rulings of the court, sustaining the objections of the plaintiff to the questions addressed to the defendant, asking him if he can state the differences between the plot of “Pique” the play, and the plot of the novel “Her Lord and Master,” and if there is any difference, except in names, between the characters in the two, and if the situations and incidents are not substantially the same.

This evidence sought to be introduced was immaterial. The plaintiff had a right to dramatize the novel, and such dramatization became his property, though there appeared in it substantial similarity in plot, situations and incidents, to the novel.

If the defendant had been competent, and had given testimony to this effect, it would not have established anything either relevant to the issue or in mitigation of damages, and it was properly excluded.

The defendant offered in evidence a statement, published in The Dramatie News, after the commencement of this action. If the statement had been a withdrawal of the charges made, and had been intended as some reparation for the injury done, it would have been admissible in mitigation of damages. But the statement discloses no such intention on the part of the defendant, and the exclusion of it by the court is in accordance with the views expressed by Ch. J. Nelson in Hotchkiss v. Oliphant (2 Hill, 516). In sustaining the objection of the plaintiff’s counsel, the judge said, in the presence of the jury : - “I could not admit that article in evidence. The idea that a man can one day blackmail another man in that way, and . another day turn round and make another statement, wall never do.” The defendant excepted to this remark, and claims that it is to be considered as a charge to the jury, or as improper influence exerted upon them during the trial of a cause. It is clearly no part of a charge to the jury, and appears to have been called out by something stated by counsel, but which is not contained in the printed case. There is nothing in the pleadings to which the term “blackmailing” is relevant, and it may have referred to some hypothetical statement made by counsel. If the defendant was prejudiced by this observation of the court in sustaining the objection after a discussion between counsel, the case should disclose in what way, or in what connection it was called forth, so that the appellate court can- see wherein, if at all, he was injured by its utterance in the presence of the jury. In determining what is admissible as evidence, both the. court and counsel, in their consideration and discussion of questions, are uncontrolled by the presence of the jury, who are in no respect parties to the matter. The defendant, perhaps, with greater reason could complain that the reading of the not very mild language of Ch. J. Nelson, in the analogous case above cited, if it had been done at the time, exerted an improper influence upon the jury. In the charge that was made to the jury, there is nothing in this behalf stated unfairly by the court, or objected to by the defendant. To select a remark by the court to counsel, in the course of passing upon a question as to the admissibility of evidence ; and then, without connecting it with the issue, but in its isolated form, to claim that there may be a surmise based upon it that influenced the jury, is an insufficient reason for granting a new trial.

The defendant excepted to another remark of the court which was made during the progress of the trial, not only in the presence, as in the preceding instance, but in the hearing of the jury. The plaintiff’s counsel stated that he had sent for witnesses on the question of the plaintiff’s character, to which the court replied, “ So far as regards the last witness on the subject of character, you need not give yourself any trouble about it.”

What has been said in the preceding paragraph applies, to some extent, to this. This remark was addressed to counsel, and is claimed by the defendant to be equivalent to directing the jury to disregard the testimony of this witness. The case shows that the memory of the witness referred to failed so much on his cross-examination, that what was said to the counsel by the court in reply, must have been quite apparent to the jury, whether they heard this conversation or not. The charge in respect to this witness was of a character to prevent any injury from the remark, and in this respect appears not to have been excepted to by the defendant.

There is no valid exception to the charge. The court charged all the defendant’s requests but one, and when the court declined to charge that, no exception was then taken. At the close of the defendant’s requests to charge, which were some ten in number, and after his exceptions to the charge, the defendant stated: “I also except to your Honor’s refusal to charge our requests.” It is said by Allen, J., in Ayrault v. Pacific Bank (47 N. Y. 476), that the court of appeals had uniformly held that exceptions in this form present no question for review.

The question whether the damages given are not excessive, is one that is not easily determined. But after such consideration as I have been able to give it, and in view of the fact that the publications were in a theatrical journal, circulating especially among those upon whom the plaintiff relied for his reputation and his business, and were of a character to injure him among them, I cannot say that the jury, after a full hearing of the testimony, were not the best judges of the amount of damages that should have been awarded to the plaintiff, or that they transcended the limits of a proper discretion in their verdict. The publications complained of by the plaintiff exceed the limits of just criticism. To be wrongfully held up to the public as the perpetrator of a literary fraud, and as wrong - fully retaining and using the production of another, is a grave accusation. The wrong and the injustice are not easily measured pecuniarily. Nor can it be entirely overlooked, that where the courts fail to afford adequate redress, the public peace is liable-to be disturbed by the acts of the sufferer, seeking violently to redress his wrongs.

The judgment and orders appealed from should be affirmed, with costs.

Sanford and Freedman, JJ., concurred.


text:
    THE JAGGER IRON COMPANY, Plaintiff and Respondent, v. HENRY H. WALKER, Defendant and Appellant.

      Decided January 14, 1878.
    I. Corporations.
    1. Manufacturing, organized under chap. 40, Laws of 1848.

      {a) Stockholders ; liability of for debts of under section 24.
    1. Not liable (among other events) unless suit for the collection of the debt shall be brought against the company within one year after it shall become due.

      (d) Promissory note made and given by corporation
    TO ITS CREDITOR FOR A DEBT OWING HIM; EFFECT qF ON RIGHT AND LIABILITY OF STOCKHOLDER.
    1. So long as the debt for which the note was given remains unextinguished, the liability of the stockholders is in respect thereof only; consequently, to hold stockholders, suit must be brought against the company within one year after that debt became due.

    1. Extinguishment ; what does not operate
    AS WITHIN THE PURVIEW OF THE STATUTE.

      (a) Corporation’s own promissory note in hands of its creditor does not.
    This although
    the creditor may have procured the note to be discounted and had taken it up on its protest.

      (b) Judgment. One obtained upon the debt, or one obtained by the creditor upon the corporation’s own note given him for the debt, does not.
    Before Curtis, Ch. J., Sanford and Freedman, JJ.
    Appeal from a judgment in favor of a trial before the court without a jury. the plaintiff:

      The defendant is sued to enforce a liability against him, as a stockholder of the Hudson River Iron Company, for a debt owing by the company. The company omitted to file a certificate of the payment in of its capital stock, as required by statute.
    It appeared that the original debt was contracted in July, 1872, for iron sold by the plaintiff to the company, and that a note for $634.33 was given for it, payable in five months, which the plaintiff procured to be discounted. That at maturity, the company gave a new note for $645.19, dated December 4, 1874, payable in three months, which the plaintiff procured to be discountéd, and with the proceeds took up and paid the prior note, which was thereupon canceled and surrendered.
    Before the maturity of this note, on March 4, 1875, the company gave a new note for $645.79, payable three months after date, which was used as before, and the former note canceled and surrendered.
    Again, on June 5, 1875, a new note for $657.69, dated that day, and payable in three months, was given, which was also used as before, and the former note canceled and surrendered.
    Suit was brought on this last note for $657.69, March 17, 1876, and judgment obtained against the company in March, 1876, and upon the return of the execution wholly unsatisfied, this action was commenced in April, 1876.
    The cause was tried before Judge Sedgavick, without a jury, who decided in favor of plaintiff. Upon his findings of fact and law, judgment was entered against defendant in favor of plaintiff, from which defendant appealed to the general term.
    Judge Sedgwick, upon deciding the case, delivered the following opinion.
    Sedgwick, J. —If there were not authority to guide me, I would take the following view of this case.
    Unless the original indebtedness was extinguished when the amount of the first note was paid to the bank out of the proceeds of the discount of the next note, the defendant is not liable.
    Upon the original indebtedness being secured to be paid by the first promissory note, the contract was in effect that the first note was a security, out of which the plaintiff was to be paid.
    If he sold the security without becoming liable as indorser, the proceeds would be applicable to the original indebtedness, and would pay it. But if he indorsed and transferred it, and on maturity the original debtor failed to pay, and he had to take it up, although he had once received money on the note, he could sue upon the original indebtedness by returning the note he had taken up. If, however, instead of suing while he held the note, the original debtor, by his consent, instead of paying, gave a new note to the creditor, there is room, I think, to believe that, although that would pay the first note, it would not pay the original indebtedness, unless the creditor obtained money on it, without becoming liable upon it. That is, the original indebtedness would remain unpaid through all successive notes, until the creditor ceased to be liable thereon.
    I do not see that the case is altered by the first note being taken up with money raised on a, second note, if the creditor be liable on such second note. The money is raised on his credit as much as upon the credit of the debtor.
    The money so raised is not the money of the debtor. He has not such an interest in it that a use of it satisfies his obligation that the creditor shall obtain from the first note the money to pay the original indebtedness. .

      This, however, is mere speculation; for as I reaFisher v. Marvin (47 Barb. 161), it is an authority that controls. The learned counsel for defendant supposes that in that case the first note was given for the purpose of raising money thereon. If that be so, still the person who advanced the money could have an action for it, although a note were given, provided it was returned to the original debtor on the trial.
    There should be judgment for plaintiff.

      Marsh & Wallis, attorneys, and Wm. F. Shepard, of counsel, for appellant, among other things, urged :
    —I. This case is directly within Parrott v. Colby (6 Hun, 55).

    II. Fisher «. Marvin was not well decided. At any rate, it is not a binding authority on this court, if its reasoning is not approved. It was made by a divided court—two-judges for reversal, one for affirmance—the judges thus standing two and two. The opinion is given without much argument or reasoning—a sort of ipse dixit. It certainly seems a novel doctrine, that when a s,eries of notes is made and delivered between the same parties, each latter one in renewal or payment of the preceding, and the form of a discount is gone through with, every new note constitutes a new and independent indebtedness, shutting off all defenses that might exist to the prior notes. The chief argument of the court in that case seems to be that on the substitution of the new note, the former note is canceled, and no action can be maintained on that. Of course not; because the new note is the renewal and extension of payment. The question as to whether an action could be maintained on the original indebtedness, is one that the court does not consider.

      Wm. M. Goodrich, attorney, and of counsel, for respondent, urged :
    —I. The debt on which the plaintiff obtained the judgment on which he bases the present action accrued within a year before the commencement of that action. The last note, which is the debt referred to, was an entirely new and distinct obligation, the consideration for which was the promise of the plaintiff that with the proceeds realized from its sale, he would take up and pay a former note, held by a bank, on which the Hudson Company were liable as makers, and which was then about to become due. This is a perfectly valid consideration (Brown v. Burrail, 31 N. Y. 114). This doctrine is clearly held in the case of Fisher v. Marvin (47 Barb. 159). The court, in giving its opinion, clearly distinguishes between the renewal of a note and the payment of a note by the proceeds of a new one. The payment of an old note by the proceeds of the discount of a new note cancels and extinguishes the old note (Bank of Salina v. Babcock, 21 Wend. 501; Bank of Sandusky v. Scoville, 24 Id. 115 ; Pratt v. Foote, 9 N. Y. 483).
    II. The defendant also claims that the original debt for iron sold has never been extinguished—that hence the action upon the present note is barred. This, however, cannot be true. The original debt was incorporated into the first note, and was paid and discharged when this first note was absolutely paid and canceled, and all remedy on it gone.
    III. Hor does it alter the case, that the plaintiff was an indorser upon this last note, as well as upon all the previous ones. The money raised upon this note was raised at least in part upon the faith of the promise of the Hudson Iron Co. to pay the note at maturity. The fact that the bank chose to further secure itself against loss by securing an indorser thereon, does not affect the truth of either of the following propositions : 1st. That the Hudson Company became primarily liable to pay the note to the bank discounting it, and that a new relation of debtor and creditor was created by novation. 2nd. That the bank, had they seen fit so to do, could have entirely released the plaintiff as indorser on this note, and found their sole remedy against the Hudson Iron Company, or failing there, against the stockholders. The defendant’s counsel has cited the case of Parrott v. Colby (6 Hun, 55), but that is an entirely different case. In that case, the debt matured March 8, 1867. On January 8, 1868, an agreement was made by which the debt was reduced to $25,000, of which $15,000 was paid in cash, and for $10,000 of which a note was given, payable in one year. The note was not paid, and a suit was brought on that note. But in the present case, a note was given for the original debt, payable in five months. When .that note was due it was paid, and the note canceled and surrendered. That payment extinguished the original debt and all action thereon.
    IV. But the bank being a holder for value and in good faith of the last note, the plaintiff, being compelled to pay the same as surety, is subrogated to the position of the bank, and has its rights and remedies against the maker (Hayes v. Ward, 4 Johns. Ch. 122 ; 1 Parsons on B. 162).
   By the Court.—Curtis, Ch. J.

—The facts are conceded, and the case presents a single question of law. The' defendant is liable in this action if suit was brought against the company within one year after the debt became due by the company (3 R. S. Edm. Ed. 738, § 24).

The question raised here is in respect to the time when the debt of the company by law became due.

It is apparent from the facts in the case that the same question is to be asked here, that was asked in respect to an analogous state of- facts by the learned judge rendering the opinion of the general term of the supreme court in Parrott v. Colby (6 Hun, 57). "Which was the indebtedness of the company to which the liability of the . . . stockholder attached,— the note, or the debt for which . . . the note was given ? ’ ’ The question was there answered, by holding that the giving of the note did not merge or extinguish the original indebtedness, but only operated to extend the time of payment, and that if the corporation was not sued within a year from the time the original debt became due, the liability of the stockholder ceased, and that it could not be renewed or extended, by any renewal or extension of the indebtedness, which the creditor might make with the corporation.

That the taking of the debtor’s note does not merge' or extinguish the demand for which it was taken, is sustained by a series of decisions in this State, which are cited in the opinion in Parrott v. Colby (Tobey v. Barber, 5 Johns. 68; Gregory v. Thomas, 20 Wend. 17; Cole v. Sackett, 1 Hill, 516; Waydell v. Luer, 5 Id. 448).

The general manufacturing law of this State has furnished so many pitfalls for inexperienced or unwary stockholders, and has operated so disadvantageously, in forcing capital out of the State, to be employed where these dangers do not exist, that courts may well hesitate before giving it such an interpretation as places the stockholder in a position where no lapse of time can protect him from liability, if the corporation and the creditor chose to change the original debt on which liability has lapsed into a note to be afterwards put in judgment against the corporation.

The respondent relies upon Fisher v. Marvin (47 Barb. 161), to sustain the decision appealed from. It appears from the opinion of the learned judge who rendered the decision now under review, that his views were similar to those presented in the recent case of Parrott v. Colby (supra), to which his attention was not called, but that he felt constrained to regard Fisher v. Marvin as a controlling authority. But this latter case, which was decided by a divided court, may now be considered as overruled by Parrott v. Colby, where the question received a careful consideration, and was determined by an undivided court.

The judgment appealed from should be reversed ; and as the facts are all conceded, judgment should be rendered in favor of the appellant dismissing the complaint.

Sanford and Freedman, JJ., concurred.


author: By the Court.—Curtís, Ch. J.

text:
    ALBERT G. WOODRUFF, et al., Plaintiffs and Respondents, v. SAMUEL A. BEEKMAN, Defendant and Appellant.
    I. Maxim.
    1. Damnum absque injuria.

      (a) Injuries necessarily resulting from doing an author- ' IZED ACT, FALL WITHIN THE MAXIM.
    1. "W gave B a license to open apertures through the floors and ceilings of his (W’s) store. W’s goods were damaged by the dust and debris arising from the opening of the apertures. There was a conflict of testimony as to whether there were injuries to the goods other than such as would necessarily result from the licensed acts of B.

      Held

    1. That B was not liable for such damages as necessarily resulted from the doing of the licensed act.
    2. That B was liable for such damages as did not so result.
    AND AS A RESULT HELD,
    3. That a charge “ that if B had a license, and went into the premises by permission of W, but was guilty of depreciating the value of W’s goods, he is still liable for the whole damage he has done,” was erroneous,

      Decided January 14, 1878
    n. Implication from express authority.
    1. An express authority carries with it by implication an authority to do such damage and injury as necessarily results from the performance of the act authorized in express terms.
    III. Trial, conduct of.—Appeal.
    1. Charge to disregard all that counsel has said of irrelevant matter.

      (a) Case ; what necessary to contain to present an exception THERETO FOR REVIEW.
    1. Should either show that the party claiming to be aggrieved called the attention of the court specifically to the irrelevant matters that had been spoken of by counsel, or should contain the alleged irrelevant matter.
    Before Curtis, Ch. J., Sanford and Freedman, JJ„
    Appeal from a judgment in favor of plaintiffs for $1,781.

      Larned & Warren, attorneys, and Ira D. Warren, of counsel, for appellant, urged :
    —I. The court charged the jury: “ You will disregard all that has been said by counsel of irrelevant matter, and try and do justice between those parties.”
    In the case of Garrison v. Wilcoxson (11 Geo. 154), the court charged the jury that, in determining the question, they were not “ to look to the argument of counsel;” the judgment was reversed, and the court said—“In a very significant sense they must look to the argument of counsel. Parties have a right to appear by counsel, and it is the privilege of counsel to address the jury on the facts. If the jury are to disregard the arguments of counsel altogether, if they are to shut their ears to their illustrations, comments, and reasonings, how unmeaning, indeed how absurd, is the appearance of counsel, &c. 'It is the duty of the jury to listen, to be informed, but not to obey.”
    If it is correct for the court to instruct the jury to disregard and treat as “irrelevant matter” all that counsel has said, of course counsel waste a vast amount of labor for themselves, impose upon the court, and are general nuisances.
    We submit that such a charge is erroneous.
    II. The learned judge instructed the jury “ that, as a question of law, if the defendant had the license, and went into these premises by permission of the plaintiffs, but was guilty of depreciating the value of the plaintiffs’ goods, he is still liable for the whole damage he has done.”
    This charge we submit was not quite accurate: as, assuming that the defendant had plaintiffs’ consent to do the work, it made the defendant liable for the whole damage done, whether it necessarily resulted from doing the work or not. If he had a license from, plaintiffs to enter and do the work, however negligently he may have done it, such negligence did not make him a trespasser ab initio (Allen v. Crofoot, 5 Wend. 506; Dumont v. Smith, 4 Denio, 320).

      Nelson Smith & Leavitt, attorneys, and John Brooks Leavitt, of counsel, for respondent, submitted two elaborate briefs.
    They conceded that one acting under permission was not liable for. a damage done to the property of the permissor, which was the necessary result of doing the permitted act, and which was or ought to have been in the permissor’s contemplation as a necessary result; but claimed that the damage was not—or, what is the same thing on appeal—was not proved by defendant to be the necessary result of the licensed act. Therefore, they claimed that the charge, as applicable to the facts of the case, was correct.

      They submitted no points as to the charge to disregard remarks of counsel of irrelevant matter.
   By the Court.—Curtís, Ch. J.

—The action is to recover damages for injury alleged to have been caused by the defendant to the plaintiffs’ stock of goods, by cutting large holes through the floors and ceilings of plaintiffs’ store. The defendant pleaded in answer, that he opened the apertures under a license from the plaintiffs, and as he lawfully might thereunder, and without injury to the business or property of the plaintiffs.

The evidence at the trial, as to whether a license was granted to the defendant, and as to the nature Of the injuries, was conflicting.

The defendant excepted ,to this portion of the judge’s charge to the jury: “You will disregard all that has been said by counsel of irrelevant matter, and try and do justice between these parties.” If counsel present and discuss irrelevant matter in summing up to a jury, it may be the duty of a judge to warn and instruct them to disregard it. If the defendant considered that he was prejudiced by this instruction of the judge, he should have called the attention of the court specifically to the irrelevant matter, that had been spoken of by counsel, or caused the same to appear in the case, so that the appellate court could have had some means of knowing whether this instruction complained of by the defendant afforded any just ground for an exception. In the form in which it is presented by the case, this exception is not tenable (Ayrault v. Pacific Bank, 47 N. Y. 576).

The jury were instructed, “ that, as a question of law, if the defendant had the license, and went into these premises by permission of the plaintiffs, but was guilty of depreciating the value of the plaintiffs’ goods, he is still liable for the whole damage he has done.” This part of the charge was excepted to by the defendant.

If the jury found that there was no license given to the defendant to open the apertures, the remaining question in the case became one simply of the assessment of the plaintiffs’ damages, if any.' But if they found that there was a license, then the question arose for their consideration, whether there were injuries to the property of the plaintiffs, other than such as would necessarily result from the licensed acts of the defendant.

If the plaintiffs’ goods were necessarily damaged by the acts of the defendant, which the plaintiffs had seen fit to permit him to perform, no action can be maintained by the plaintiffs to recover for such damages. The loss to the plaintiffs is, in such cases, the necessary sequence to the permission given by them. But for all injury to the plaintiffs’ goods beyond such as was necessary in a careful and prudent opening of the apertures, if the jury found there was a license, the plaintiffs are entitled to recover. On this subject the evidence is conflicting. The defendant testified that after the boards were removed, the lathing was sawed off, and that the portion sawed off and the plaster, as it came down, was received by his men, who stood on boxes below, thus making very much less dust, and avoiding bruising the floor. The plaintiffs, on the contrary, testified to an accumulation of dust and debris in his store and upon his goods, entirely inconsistent with the careful and prudent mode of proceeding stated by the defendant. It is apparent that the presence of some dust and some debris in the plaintiff’s store was a necessary result of opening these apertures in accordance with the permissibn claimed to have been given.

In this condition of evidence there was a question of fact, as to whether any unnecessary damage was done by the defendant acting under the license. If the jury found that there was not, while the defendant was so acting, there was an end of the plaintiff’s case. It is therefore possible that in view of this, the defendant may have been prejudiced by the instruction of the court to the jury, that if the defendant went into the premises by permission of the plaintiff, but was guilty of depreciating the value of his goods, he •was liable for the whole damage he had done. The damage for which the defendant was liable, was in reality, that part of it, if any, which was unauthorized by the license and was tortious. The exception to this portion of the charge should be sustained, unless the defendant by his course at the trial conceded that the whole damage to the plaintiffs’ goods was not a necessary result of his acts. But no such concession was made by the defendant. He testified to having the work done in such a way as to very much diminish the dust, but the subtle and pernicious action of lime dust upon goods of the character of the plaintiffs, even when very moderately diffused in a store, is shown by the proofs (Green v. White, 37 N. Y. 405).

There are one or two other exceptions, to which the attention of the court was directed, but they are not of a character to call for a new trial, but the exception to the instruction that the defendant, if he had the license, was liable for the whole damage, appears to be such as entitles the defendant to a new trial.

The judgment appealed from should be reversed, and a new trial granted, with costs to the defendant to abide the event.

Sandeord and Freedman, JJ., concurred.


text:
    SAMUEL T. FREEMAN, Plaintiff and Respondent, v. JOHN L. LAWRENCE, et al., Executors, etc., of William T. Garner, Deceased, Defendants and Appellants.

      Decided January 14, 1878.
    I. Party to action.
    1. Examination of against parties claiming under a deceased person, under section 399 of the Code of Procedure.

    1. Question not allowed.

      (a) About the time you were introduced to Mr. Garner (the deceased), did you commence any action for- him ? This is inadmissible as calling for evidence of employment of the witness by the deceased.
    IT. Evidence.
    1. Experts, opinion of as to value of services.

      (a) Cannot be based on what.
    1. Not on the testimony of a witness or witnesses as to what services were rendered.
    (5) May be based on what.
    1. On facts stated by witnesses, and claimed by counsel to have been proved by their testimony.
    (a) Questions to expert, what may be put.
    1. Hypothetical ones based on such facts may be put.
    Before Curtis, Oh. J., Sanford and Freedman, J^T,
    Appeal from a judgment in plaintiff’s favor for $2,248.15, entered upon a verdict, and also from an order denying a motion for a new trial.

      H. A. Nelson, attorney, and of counsel, for appellants, on the points noticed by the court, urged :
    —I. The following question, propounded to plaintiff in his own behalf: “ About the time you were introduced to Mr. Garner, did you commence any action for Mm f ” was improperly allowed (Strong v. Dean, 55 Barb. 337; Stanley v. Whitney, 47 Id. 586; 48 Id. 417; Van Alstyne v. Van Alstyne, 28 N. Y. 379).
    II. The following question, propounded to Rufus L. Scott, a lawyer: “ Will you state to the court and jury, what you think was a reasonable charge for the services rendered by Mr. Freeman, as testified to by him, as attorney?” was improperly allowed (Reynolds v. Robinson, 64 N. Y. 595; People v. Lake, 12 Id. 358; Carpenter v. Blake, 2 Lans. 206).

      Robert Murray, attorney, and of counsel, for respondent, urged :
    —I. The question put to plaintiff, “About the time you were introduced to Mr. Garner, did you commence any action for him ? was «properly allowed (Hildebrandt v. Crawford, 6 Lans. 502; Simmons v. Sisson, 26 N. Y. 264; Lobdell v. Lobdell, 36 Id. 327; Cary v. White, 59 Id. 336). If any error was committed in the admission of any part of the plaintiff’s testimony, it could not have done any possible injury to the defendants, and should therefore be disregarded. The plaintiff’s case was proven, beyond question, by other evidence. The rule ■ seems to be settled that new trials will not be granted on the ground of the admission of improper evidence, when “ the court is satisfied that no injustice has been done, and that the verdict would have been the same with or without such evidence” (Forrest v. Forrest, 25 N. Y. 510; Clark v. Brooks, 2 Daly, 159; Rowland v. Hegeman, 59 N. Y. 643).
   By the Court.—Curtís, Ch. J.

—The action is brought to recover for legal services rendered the de- - ceased in his lifetime. No question was raised on the trial as to the rendering of the services, and no exceptions were taken to the charge to the jury.

The only points raised for consideration • on this appeal, are the defendants’ exceptions to the rulings of the court upon the reception of testimony, and also upon the claim of the defendants, that the damages are excessive.

The plaintiff, when testifying at the trial, was asked this question on his own behalf: “Question. About the time you were introduced to Mr. Garner, did you commence any action for him ?” To which defendants objected that the witness was incompetent to testify on the subject, -being a party, and the other party being dead; the objection was overruled, and defendants excepted. The answer was “I did.” The appellants claim that this exception is well taken, and that the reception of this evidence was in conflict with the provisions of section 399 of the Code; that it was in effect allowing the plaintiff to testify on his own behalf in regard to a personal transaction or communication between the witness and the deceased, or that at least, the form of the question was such that taken in connection with the answer it called for, it must have been so understood by the jury. The employment of the plaintiff by the deceased was one of the issues raised by the pleadings.

The protection sought to be afforded to the estates of deceased persons, by this section of the Code, has not been viewed with disfavor by the courts, and has led to perhaps a stringent interpretation and application of its provisions, but yet not more so than what is deemed requisite in the due administration of justice. Considered in respect to the recent decisions in Brague v. Lord, court of appeals, and Ross v. Harden, at the general term of this court, I am led to the opinion, that the objection to this question in the form that it was asked, should have been sustained, and that the appellants’ exception was well taken.

The remaining exception of the appellants to which the attention of the court was chiefly called at the argument was as follows. On the trial, Rufus L. Scott was examined as a witness on behalf of the plaintiff. He testified, “I am a lawyer; have been about fifteen years; have heard the evidence of Mr. Freeman just given in this case.” Question by plaintiff : “ Will you state to the court and jury, what you think was a reasonable charge for the services rendered by him, as testified to by him, as attorney ?” This was objected to by the defendants, “as irrelevant and improper, and as improperly calling for the opinion of the witness, and because the witness has no right to judge in reference to the testimony that is in the case.” The objections were overruled, and defendants excepted.

The value of the professional services of the plaintiff was a question of fact to be decided by the jury upon the testimony. A witness who without any previous knowledge of the services after simply hearing the plaintiff’s testimony in the court at the trial on the subject, is not competent to testify as to their value, if objected to. He may be asked hypothetical questions, based upon facts, stated by witnesses, and claimed by counsel to have been proved by their testimony. The attention of the witness is thus called to a state of facts, and he answers without any reference as to whether they have been proved, or are true or not. His field is in this way limited, and that of the jury is not encroached upon.

This is the doctrine held in the case of Reynolds v. Robinson (64 N. Y. 589), where in an analogous case the value of professional services was allowed, against objection, to be testified to by a witness, who had heard the testimony of his professional brothers at the trial, and on this ground the judgment of the general term of the supreme court, affirming a judgment entered upon the report of a referee, was reversed and a new trial ordered.

It is pressed by the respondent, that even if there were errors in these rulings of the court, as to the admission of the testimony, that it could have done no possible injury to the appellants, and should therefore be disregarded. It may be that the jury were not influenced by this testimony, which should have been, excluded, but a careful consideration of the case does not enable me to come to the conclusion that this was certainly so, and it is preferable to follow the action of the courts in the cases cited.

There were other exceptions in the case to the admission of testimony, but none that called for the granting of a new trial.

The judgment appealed from should be reversed, and a new trial granted, with costs to the defendant to abide the event of the new trial granted.

Sanford and Freedman, JJ., concurred.

       2 Abb. New Cas. 1.

       42 N. Y. Superior Ct. Rep. 427.