text:
    PAUL W. LATHAM, Respondent v. PATRICK B. DELANY, Appellant.

      Foreign judgment, jurisdiction of the court in which it was obtained must appear in action thereon, etc.

    This action was against appellant, individually, upon a judgment entered in a circuit court of the state of Virginia against appellant and one R. N. Pool, jointly, and the chief question litigated on the trial was whether or not the Virginia court had acquired jurisdiction of the person of the appellant before rendering judgment. The recitals or statements in the record of a foreign judgment, purporting to establish jurisdiction, may be contradicted, and the presumption of jurisdiction appearing therefrom may be overthrown by testimony. The return on the process did not show personal service on Delany, one of the defendants, (now appellant) nor upon his wife at his usual place of abode, as provided by the law of Virginia, and tlie defendant gave proof tending to show that the service upon his wife was made at a place not the usual abode of defendant, and at the . time of such service defendant was not within the state of Virginia.

      The defendant, on the trial, offered evidence tending to show that the defendant had not appeared in person, or by attorney, or counsel, in the action in the Virginia court in which the judgment was obtained; on objection, this evidence was excluded. Held, such exclusion was error. At the close of the testimony the court ordered a verdict for plaintiff, to which defendant excepted. Held, such direction was error; that the condition of the testimony as to the service of the original process was such that the question of service should have been submitted to the jury, and if in addition thereto the testimony excluded had been given, the jury might have found that the recitals of appearance in the judgment were incorrect in fact, and conferred no jurisdiction. There was no light lost by defendant in not asking leave to go to the jury for he had not requested any direction in his own behalf upon evidence submitted by him to the court.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided January 5, 1891.
    Appeal from judgment entered upon a verdict of jury, directed by the court, and from an order denying motion for a new trial on the judge’s minutes.

      E. Louis Lowe, attorney and of counsel, for appellant, argued:—
    I. In this action, the defence is set up that the defendant was not served with process, and did not authorize any attorney or any one to appear for him in the Virginia case. Where such a defence is interposed to an action upon a judgment obtained in another state, it is always competent to inquire into the jurisdiction of the court which rendered the judgment. Thompson v. Whitman, 18 Wall. 457; Dobson v. Pearce, 12 N. Y. 156; Shumway v. Stillman, 6 Wend. 447. The Constitution of the United States (Art. IV., § 1,) and the law of congress of Hay 26, 1790 (1 Stat. at Large, 122), which provide that full faith and credit shall be given to the judicial proceedings of the different states throughout the Union, apply only to cases where it is conceded or established that the court acquired the necessary jurisdiction of the person or thing, but these constitutional and legislative provisions do not prohibit and were not designed to prohibit an inquiry into the preliminary question whether the court rendering the judgment sued on, ever did in fact acquire or possess the requisite jurisdiction. Thompson v. Whitman, supra ; Cole v. Cunningham, 133 U. S. 107, 111.
    II. Even though the record recites on its face all the necessary jurisdictional facts in the strongest manner possible, the defendant may, nevertheless, prove that the court did not have jurisdiction. Thompson v. Whitman, 18 Wall. 457, 468. (a.) If it is alleged that he was served with process, he may show the contrary. Knowles v. Gaslight Co., 19 Wall. 58. The uncontradicted proof in this case shows that no service of process, personal or otherwise, was made upon the defendant, according to the laws of Virginia. (6.) If it is asserted in the record that the defendant appeared by attorney, he must, nevertheless, be permitted to prove (if he has set it up as a defence) that he never authorized the attorney or any one else to appear for him. Howard v. Smith, 33 Super. Ct. (1 J. & S.), 124; Bolton v. Jacks, 29 Super. Ct. 166; Ferguson v. Crawford, 70 N. Y. 253; Hill v. Mendenhall, 21 Wall. 453; Starbuck v. Murray, 5 Wend. 148; Noyes v. Butler, 6 Barb. 613; Borden v. Fitch, 15 Johns. 121. The rule laid down in Brown v. Nichols, 42 N. Y. 26 ; Denton v. Noyes, 6 Johns. 296, and in Hamilton v. Wright, 37 N. Y. 502, that a party shall not be permitted to question the authority of an attorney who has assumed to appear for him, has been applied in this state only to domestic judgment, but never to sister State or foreign judgments. Ferguson v. Crawford, supra; Nordlinger v. De Mier, 54 Hun, 276, 278; Hollins v. St. Louis, etc., Co., 11 N. Y. Supp. 27. In these cases, the courts seem disposed to criticise and view with disfavor the distinction which has been made, permitting the authority of an attorney to be disputed in the case of a foreign judgment and in refusing to permit it to be disputed in the case of a domestic judgment.

      It has been held that an action will lie to set aside a domestic judgment on the ground that it was obtained through the unauthorized appearance of an attorney for the defendant (Ormsby v. Jacques, 12 Hun, 443). The case of Gilman v. Tucker, 18 N. Y. Civ. Pro. 50, decided in the Superior Court, does not seem to be in conflict with Ormsby v. Jacques, because in Gilman v. Tucker the action was brought in the Superior Court to set aside a judgment of the Supreme Court of this state. The defendant in this action, however, unless he is permitted to prove his defence here can obtain no relief against the judgment upon which he is sued, except by going to Virginia and bringing an action or making a motion there, and this the court will not compel a citizen of this state to do. Buck-master v. Grundy, 3 Gilman (Ill.), 626, 630; Tribbles, v. Toul, 7 Mon. 455; Taylor v. Stowell, 4 Met. (Ky.) 176, 177 ; Lirch v. Foster, 1 Ves. Sr. 88 ; Green v. Campbell, 2 Jones (Eq.), N. C. 448 ; Pander v. Cox, 28 Ga. 306, 307; Edminson v. Baxter, 4 Hayw. (Tenn.), 112 ; Richardson v. Williams, 3 Jones (Eq.), N. C. 119 ; Graham v. Tarkersby, 15 Ala. N. Y. 644; Henrichson v. Reinbach, 27 Ill. 301. In the case of Teel v. Yost (8 N. Y. Supp. 552 ; 5 N. Y. Supp. 5), the Superior Court held that the defendant was bound by the Pennsylvania judgment, but the defendant in that case, was not only actually domiciled in Pennsylvania at the time of the rendition of that judgment, but had previously expressly authorized it to be taken against him, in and by a written instrument executed under his hand and seal. ' The defendant in the pending case, however, was not only not served with process, but was an actual resident of the state of New York, and had been such resident for nearly four years when the Virginia judgment was rendered against him. It was therefore error to exclude proof that the defendant did not authorize any attorney or other person to appear for him in the Virginia suit.

      William C. Davis, attorney and of counsel, for respondent, argued :—
    I. As between Virginia and New York the law of this state, the lex fori, must prevail. “ It is universally admitted and established that the forms of remedies .and the modes of proceeding and the execution of judgments are to be regulated solely and exclusively by the laws of the place where the action is instituted, or, as the civilians uniformly express it, according to the lex fori.” Story on Conflict of Laws, 8th ed., p. 773. “ But the form of remedies and the order of judicial proceedings are to be according to the law of the place where the action is instituted, without any regard to the domicile of the parties, the origin of the right, or the country of the act.” Ib., p. 775. We administer justice according to our laws and the laws prescribed by our legislature. Andrews v. Herriott, 4 Cow. 508; Bird v. Caritat, 2 Johns. 345. See also Cannon v. Northwestern Mutual Life Ins. Co., 29 Hun, 470, in which the question of the right of an assignee of a life insurance policy, having no insurable interest, to recover thereon, was held determinable by the lex fori. See also, Nash v. Tupper, 1 Cai. 402; Smith v. Spinola, 2 Johns. 198; Lodge v. Phelps, 1 Johns. Cases, 139; Peck v. Hozier, 14 Johns. 346 ; Bank of U. S. v. Donally, 8 Pet. 361; Parsons on Cont., 6th ed., vol. 2, 588. “ As is said in Scudder v. Union National Bank, 1 Otto, 406, £ matters respecting the remedy, such as bringing suits, • admissibility of evidence, statutes of limitation, depend upon the law of the place where the suit is brought.’ ” Miller v. Brenham, 68 N. Y. 83, 87.
    II. The service of the summons and account, as shown by the sheriff's return, was sufficient under the law of Virginia. The defendant admits his residence in Harrisonburgh, Va., at the time when the suit was begun. In Goolsby v. St. John, 25 Grattan (Va.), 156, the Virginia Court of Appeals said: “An execution of the summons in any of the modes prescribed by law is equivalent to an execution of it by delivering a copy thereof in writing to the party in person.” In Smithson v. Briggs and wife, 33 Grattan (Va.), 180, the return of the sheriff on service of a summons was in these words r “ G. W. Smithson, not being found at his usual place of abode, a true copy of the within rule wa.s left with his daughter at his residence, who is over the age of sixteen years, and purport explained to her, this 28th day of August, 1871.” All the judges of the Virginia Court of Appeals except Anderson, J., thought the notice sufficient. The courts of New York in cases like the present follow the statutes and construction put upon them by the foreign tribunal. In Cassidy v. Leetch, 53 How. 105, the action here was upon a judgment recovered in the state of Louisiana. The court said: “The Louisiana suit was begun and judgment rendered therein in the year 1869. At the commencement of - the suit and for some time prior, as well as subsequent thereto, the defendant was domiciled at the corner of Rampart and Terpsichore streets, in the city of New Orleans. He was absent from home when the suit was begun, and the citation and the petition, (papers which correspond to the summons and complaint of our New York practice) were served upon him by the sheriff leaving a copy of them at the domicile of defendant, with his (the defendant’s) wife, who was a white person above the age of fourteen years, and who dwelt in the same domicile with said defendant. The return of the sheriff is in strict conformity with the law of Louisiana as expounded by the courts of that state (§§ 188, 190, 201, Code of Practice ; Kendrick v. Kendrick, 19 Louis. 38). The defendant, as has been said, was domiciled in Louisiana, and owed allegiance to that state and submission to its laws. “ The manner of serving process must necessarily be regulated by every country for itself; and if a state permits process to be served upon one of its own citizens by the leaving of it, in his absence, at his domicile with an adult member of his household, that method of service is not so repugnant to the principles of natural justice that a foreign tribunal should refuse to recognize it and treat a sentence founded on it as a nullity (3 Burge’s Foreign and Colonial Laws, 1056).” See also Hunt v. Hunt, 72 N.YT. 217, where this precise question is passed upon. Huntley v. Baker, 33 Hun, 578, is a leading case upon this subject. The authorities are there collated. The court held in favor of the foregoing views. In Teel v. Yost, 8 N. Y. Supp. 552, a judgment of this court in an action brought upon a judgment of the Court of Common Pleas of Northampton County, Pennsylvania, was affirmed. The court said: “ The defendant was domiciled in the state of Pennsylvania at the time of the entry of the judgment in the Court of Common Pleas of Northampton County of said state, and was therefore bound personally by the judgment, provided it was entered in accordance with the laws of that state.”
    III. Even if the service of the summons were defective, the court acquired jurisdiction of the defendant’s person by his subsequent appearance and answer by attorney. The answer, or plea as it-' is called in Virginia, is given, the withdrawal of it by leave of court the rendition of judgment by the court, and the name of the attorney who appeared and conducted the proceedings in behalf of the defendants. This voluntary appearance by attorney was equivalent to the personal service of the summons and waived all objections to the regularity or sufficiency of the service. Citing authority on this point would seem almost superfluous. Christal v. Kelly, 88 N. Y. 285; Ogdensburgh, etc., R. R. Co. v. Vermont, etc., R. R. Co., 63 Ib. 176, 181. But Mr. Haas, the attorney who appeared, is now dead. Notwithstanding all the facts stated upon the face of this record and the death of the attorney, the defendant now seeks to shelter himself under a claim that this appearance and answer were unauthorized and conferred upon the court no jurisdiction of his person. The trial court upon objection properly precluded the defendant from' denying the authority of the attorney. The following authorities seem to answer the question in favor of the respondent: In Gilman v. Tucker, 28 N. Y. State Reporter, 587 (reported also 7 N. Y. Supp. 682),. a case decided at general term in this court, December 5, 1889, the court held that a judgment entered against a defendant who was not served with process and had no knowledge of the suit, but for whom an attorney appeared without authority, is not void, and is regular when entered. The appropriate relief from such judgment is by application to the court by which judgment was rendered. Sedgwick, Ch. J., said, following the authority of Denton v. Noyes, 6 Johns, 296 (approved in Brown v. Nichols, 42 N. Y. 26): “ The judgment was not void, and was regular when entered, and the appropriate relief for the unauthorized appearance is by an application to the court by which judgment was given, and the relief given by the court in its discretion, when the attorney appearing is insolvent, would be to allow the defendant to come in and plead. My opinion is that in this action the plaintiff could not be relieved of the judgment, as it was in the power alone of the court giving judgment to set' aside the judgment. But if this proposition is not correct, the relief that should be given in the action should be no greater than could be obtained in the court that gave the judgment; that is, the defendant in the judgment, to entitle herself to relief, should show- that she has a defence on the merits.” Freedman, J., concurring, said : “ I am of the opinion that the judgment should be affirmed with costs, for the reasons assigned by the learned chief judge, and the further reason that the complaint in this action, on its face, shows no equitable cause of action.” In Brown v. Nichols, 42 N. Y. 26, 30, Judge Earl, in giving the opinion of the Court of Appeals, said: “ I think the judgment upon which this action is based is a valid one. Mr. Haven, a responsible attorney, appeared for A. D. Patchin, the deceased, and in such a case I think it ought to be regarded as the settled law of this state that the judgment may stand, and the party must seek his remedy against the attorney, who, without any authority, has appeared for him, unless there is some good reason for not doing it. I think a party should always seek relief for an unauthorized appearance in the suit in which it has been put in, where the rights and equities of all parties can be best protected. The rule is based not entirely upon the law of agency, but upon reasons of policy and justice which are discussed in the case of Denton v. Noyes, 6 John. 296, and by Judge Woodruff, in Hamilton v. Wright, 37 N. Y. 502.” In Vilas v. Butler, 9 N. Y. Supp. 82, the Supreme Court, general term, third department, February 24, 1890, held that a motion to vacate a judgment, on the ground that the appearance of the attorney was unauthorized, is properly denied after the death of the attorney and of the defendant who retained him, where it appears that the moving party has been guilty of laches, and refuses to submit himself generally to the jurisdiction of the court, etc. Learned, P. J., said: “ And it is not till the death of Page and Whiting has closed the mouths of those who might perhaps show authority for the appearance, that he comes into court to deny authority. It is true that the assumption of agency does not of itself prove agency. * * * But when an appearance has thus been put in, and a case has been litigated by a most reputable attorney and counsel, it does require on the part of one who disavows the authority ^ the utmost promptitude in action. It is utterly unreasonable that Chase should not at once have taken the very proceeding in which he is now engaged.” These cases illustrate the force and effect to be given by the courts to section 1, article 4, of the Constitution of the United States, which reads as follows, viz.: “ Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state, and the Congress may by general laws prescribe the manner,” etc. Under the foregoing authorities, the defendant would be estopped from denying the authority of his attorney, if the judgment were a judgment of a court of general jurisdiction of this state. The rule is the same as to judgments of the courts of sister states. In Ferguson v. Crawford, 70 N. Y. 253, 261, a leading case, Judge Rapallo said: “ When we come to consider the effect of these authorities, it is difficult to find any solid ground upon which to rest a distinction between domestic judgments and judgments of sister states in regard to this question, for under the provisions of the Constitution of the United States, which requires that full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state, it is now well settled that when a judgment of a court of a sister state is duly proved in a court of this state, it is entitled here to all the effect to which it is entitled in the courts of the state where rendered. If conclusive there it is equally conclusive in all the states of the Union; and whatever pleas would be good to a suit therein in the state where rendered, and none others, can be pleaded in any court in the United States.” Citing, Hampton v. McConnel, 3 Wheat. 234; Story, Com. on Cons., § 183; Mills v. Duryee, 7 Cranch, 481. The defendant should be in no better position here than in Virginia. In Ferguson’s Admr. v. Teel, 82 Va. (7 Hansbrough), 690, the Virginia Court of Appeals said: “ To impeach and overturn judgments of courts of competent jurisdiction involves consequences of too much moment to be lightly regarded; and when a court of general jurisdiction has pronounced judgment, its adjudication should be as conclusive on the question whether a party was duly notified as on any other point necessary to a proper determination of the case.” In this case a bill in equity had been taken pro confesso against all defendants. It appeared upon the face of the proceedings that one Elizabeth A. Tench, the wife of Edmund Tench, was made a party defendant to the bill, and a writ of summons sued out against her, but by the return made it appeared to have been served upon her husband and not upon her. The Virginia Court of Appeals refused to reverse the judgment on that ground.
   Per Curiam.

The action was against the appellant, individually, upon a judgment entered in a circuit court of the state of Virginia against one R. N. Pool and the appellant jointly. The chief question litigated on the trial was whether the court of Virginia had obtained, before rendering judgment, jurisdiction of the person of the present defendant.

In the instance of a foreign judgment, rendered by a court of general jurisdiction, the recitals or statement in the record of it purporting to show jurisdiction, may be contradicted and the presumption of jurisdiction may be overthrown by testimony. Ferguson v. Crawford, 70 N. Y. 257, and the cases there cited.

The return by the sheriff, as to service of summons on the record, was executed upon R. N. Pool and P. B. Delany by leaving with the wife of each a copy of the within summons, also certified copy of account, they both being white persons over the age of sixteen years and members of the family, explained purport thereof, neither of them being found at their usual place of abode.

The legal method of service of summons appeared in § 1, ch. 163, title 51 of the Code of Virginia of 1873, which was given in evidence. Service is by delivering a copy thereof in writing to the party in person, or if he be not found at his usual place of abode by delivering such copy and giving information of its purport to his wife or any person found there who is a member of his family and above the age of sixteen years, or if neither he nor his wife nor any such person be found, then by leaving such copy posted at the front door of said place of abode.” The return, therefore, did not show service because it did not declare that the service made upon the wife was made at the Usual place of abode of the defendant.

To meet the presumption of jurisdiction in fact that might be created by the judgment being made by a court of general jurisdiction, the defendant, upon the trial, gave proof tending to show that the service upon the wife was made at a place not the usual abode of the defendant, and also that the defendant himself was not within the state of Virginia at the time of the service upon his wife.

To maintain the jurisdiction, the plaintiff relied upon certain recitals in the judgment, that the defendant in it had personally appeared before the court, as perhaps it might be argued was the recital of the judgment, or had appeared by attorney.

The defendant on the trial offered evidence tending to show that the defendant had not appeared in person in the court of Virginia and had not authorized any attorney to appear for him. Kerr v. Kerr, 41 N. Y. 275. The court excluded incorrectly, I think, the testimony offered.

At the close of the testimony the court ordered a verdict for plaintiff under the exception by defendant.

In the condition of the testimony as to the service .of original process, I think the question was one for the jury. They might have found that no sufficient service had been made. In that case, and so far as that affected jurisdiction, the court of Virginia was without jurisdiction. In connection with this, the testimony that was excluded,- if given, might have persuaded the jury that the recitals of appearance were incorrect in fact, and that so far as that was concerned there was no jurisdiction.

There was no right lost by the defendant in not asking leave to go to the jury, for he had not requested any direction in his own behalf upon a construction of the evidence submitted by him to the court.

It is to be noticed that the present action is against the defendant, individually, upon a joint judgment. No question was made upon the trial or on the argument, as to the power of the joint-debtor, the two being partners, to cause an appearance for the present defendant.

The judgment and order appealed from are reversed and a new trial ordered, with costs to abide the event.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

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    MORITZ ROTH, Appellant v. THE HAMBURG-AMERICAN PACKET COMPANY, Respondent.

      Common carrier—Bill of lading—Liability for negligence.

    This action was for the value of two casks of wine. The casks were found on the arrival of the steamship to be in a broken condition, some of the staves having been broken, and the whole of the contents had leaked out. The bill of lading provided that the defendant should not be liable for breakage or leakage. The plaintiff claimed that the facts of the breakage and leakage created a presumption of negligence in the breakment of the casks for which defendant was liable under the bills of landing, or that, at least, it was for the jury to say whether the condition of the casks did not show negligence.

      Held, that assuming the law to be that when casks or things of that nature are generally carried without breakage, if ordinary care is used, the fact of breakage leads to the presumption that ordinary care was not used, yet such a presumption can be made only in regard to casks that are made of such material, and in such manner, that will give them the strength to resist the ordinary operations on the ship; yet if nothing be known or presumed as to the strength of the cask, no knowledge or ex- ■- perienee would exist upon which it might appear probable that the casks would bear ordinary usage. The manner in which these casks were made, or the strength of the material, were not shown, although proof on the subject could have been had, and there can be no presumption as to their strength, and the plaintiff did not show facts upon which a presumption of negligence of defendant could be assumed, nor any question on that point, for the consideration of the jury.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided January 5, 1891.
    Appeal by plaintiff from judgment dismissing complaint entered upon an order made at trial term, and from order denying plaintiff’s motion for a new trial made upon the judge’s minutes.

      John Fennel and A. H. Berrick, attorneys and of counsel, for appellant.

      Butler, Stillman & Hubbard, attorneys, and James C. Colgate of counsel, for respondent.
   Per Curiam.

The action was for the value of two casks of wine that had been shipped upon a steamer of the defendants to be carried to this port. The plaintiff was owner and consignee. On the arrival of the steamer the plaintiff demanded the casks. They were then in a broken condition, some of the staves having been broken. The whole of the contents had leaked out. The plaintiff had received a bill of lading which provided that the defendants should not be liable for breakage or leakage, but on the trial it was claimed that the shipment had been made under a verbal contract which would make the defendants liable as common carriers at common law. The evidence, however, shows that the shipment was made, subject to the terms of the printed bill of lading, afterwards delivered to the agent of plaintiff and sent by him to plaintiff.

The plaintiff claimed, under the bill of lading, that assuming the defendants were not liable for breakage and leakage, unless caused by their negligence, yet that the fact of the breakage and leakage created a presumption of negligence in the treatment of the cask, or that, at least, it was for the jury to say whether the condition of the casks did not show negligence. Let it be assumed, for the purpose of this decision, that the law is that when casks or things of that nature, are generally carried in ships, without breakage, if ordinary care is used, the fact of breakage will lead to a presumption that ordinary care was not used. Yet such a presumption can be made only of casks that are made of the material and in manner that suffice to give them strength to resist the ordinary operation upon the ship. If nothing be known or presumed as to the strength of the cask, no experience would exist upon which it might appear probable that it would bear ordinary usage.

In the present case, at the time of shipment, the casks were enveloped in linen covers. The manner in which the casks were made, or the strength of materials, were not shown, although proof on the subject could have been had. The admission in the bill of lading referred only to the apparent good order and condition of the casks,” and this referred, in fact, to the linen covers. There can be no presumption as to the degree of strength of any particular cask. If these views are right the plaintiff did not show facts which made a presumption of negligence on. defendants’ part, or any question for the jury on that point.

The rulings as to evidence were correct.

Judgment and order appealed from affirmed with costs.


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    JACOB WOLKOFF, Appellant v. WILLIAM TEFFT, et al., Respondents.

      Witness—Testimony, immateriality and irrelevancy of.

    The plaintiff was a witness in his own behalf. On his cross examination he testified that he had been arrested about some coats; that a party that was with him stole the coats, and that he, the plaintiff, was arrested and convicted, and served a term in the House of Refuge. On the re-direct examination he was asked, Were you guilty or innocent of that transaction P The counsel for defendants did not object to the form of the question but objected to it as immaterial and irrelevant, and the objection was sustained and plaintiff’s counsel excepted to this ruling.

      Held, that this ruling was error. That the witness had aright to show his innocence and, if impossible, relieve himself from the unfavorable inferences that might be drawn from the facts of his conviction. No record of the conviction was produced, but if it had been it would not have been conclusive of the plaintiff’s guilt.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided January 5, 1891.
    Appeal from judgment upon an order dismissing the complaint, and from an order denying plaintiff’s motion for a new trial upon the judge’s minutes.

      Henry Morrison, for appellant.

      Palmer & Boothby, for respondents.
   Per Curiam.

The plaintiff was a witness in his own behalf as to important matters. On his cross-examination he testified that he had been arrested about some coats; that a party he was with stole the coats, and that he, the plaintiff, was arrested and convicted and served his term in the House of Refuge. On re-direct examination, he was asked, Were you guilty or innocent of that transaction ? The counsel for defendants did not object to the form of the question, but objected to it as immaterial and irrelevant. The witness had a right to show his innocence and, if possible, to relieve himself from the unfavorable inferences that might be drawn from the facts of his conviction. No record of that had been produced, but if it had been, it would not have been conclusive of plaintiff’s guilt. Sims v. Sims, 75 N. Y. 467.

Judgment and order reversed and new trial granted, with costs to abide the event.


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    BERNHARD METZ, Respondent v. EDWARD LUCKEMEYER, et al., Appellants.

      Action for compensation for service rendered by plaintiff to defendants, doing business as commission merchants, in procuring for them the business or accounts of a manufacturing firm.

    The ease shows that, at defendants’ request, plaintiff procured the accounts of a manufacturing firm to be placed with the defendants, and thereafter the manufacturing firm employed the plaintiff to assist in selling these goods in the name of defendants.
    At the outset the defendants had arranged that they were to receive a commission of five per cent, but after several months defendants were relieved from obligation to sell, the manufacturing firm undertaking to do that, and the defendants were to receive only four per cent as commissions. On the trial defendants claimed that plaintiff, as matter of law, could not recover for accounts placed by his influence with defendants after the second arrangement. Held, that it was a matter for the jury to determine whether or not those accounts, as well as the accounts under the second arrangement, were such as were within the contemplation of the parties at the time of the employment. The court did not err in charging the jury that taking the testimony of Mr. Shefer, in regard to employment of plaintiff, that defendants became bound to pay the plaintiff something for the rendition of his service.
    Defendants’ counsel requested the court to charge, that if the plaintiff was entitled to a compensation as distinguished from a commission, such compensation depended not upon the quantity of goods sold but upon the actual labor performed by plaintiff in the service. Held, that the refusal to so charge was correct, because the jury, in determining the value of the service, was bound to consider the value to the defendants of the benefits received by them.
    Before Sedgwick, Ch. J., and Freedman, J.

      Decided January 5, 1891.
    Appeal "by defendants from judgment entered against them on verdict of jury, and from order denying their motion for a new trial, made upon the judge’s minutes.

      Charles Wehle, for appellants.

      Horwitz & Hershfield, for respondent.
   Per Curiam.

The action was to recover compensation for services rendered by the plaintiff to the defendants, who were merchants, doing a business in the nature of the business of commission merchants, in procuring to be placed with the defendants the accounts, as they were called, of a manufacturing firm. It was explained on the trial that placing an account means that a house ships all the goods which they manufacture in a certain line. The commission house obtains the selling and does the shipping and guaranteeing and other matters connected with the management of the goods, and for this the manufacturer pays a commission, a percentage to the commission house.

The evidence showed, as the jury might find, that at defendants’ request the plaintiff procured the accounts of a manufacturing firm to be placed with the defendants. Immediately the manufacturing firm employed the plaintiff to assist in selling these goods, the selling being done in the name of the defendants. At the outset the defendants had arranged that they should receive a commission of five per cent. After several months another arrangement was made by which the defendants were relieved from obligation to sell, the manufacturing firm agreeing to do that at their own expense, and the defendants were then to receive only four per cent.

On the trial the defendants took the position that the plaintiff, as matter of law, could not recover for accounts placed with the defendants after the second arrangement. This was not correct, for it was a matter for the jury to find whether those accounts, as well as the accounts under the first arrangement, were such kind of accounts as was within the contemplation of the parties at the time of the employment.

The court did not err in charging that taking the testimony of Mr. Shefer as to the employment, the defendants became bound to pay the plaintiff something for the rendition of the service that he rendered to them. Assuming that theo mere words of Shefer as to the employment might have the meaning that there was to be no compensation if the taking of the accounts should not be of value to the defendants, yet the preponderance of evidence was that the accounts did prove to be valuable; and the court had the right in charging to consider the condition of the testimony.

There was no exception to the charge, that if there be a custom to pay the broker a commission of one per cent, then the plaintiff was entitled to such a commission.

The learned counsel for defendants asked the court to charge, that if the plaintiff was entitled to a compensation as distinguished from a commission, the compensation depended not upon the quantity of the goods sold but upon the actual labor spent by the plaintiff in the performance of the services. The court properly refused to charge this, because the jury in determining the value of the services were bound to consider the value to the defendants of the benefits received by them.

There was an original complaint in this action which was afterwards amended. On the trial the counsel for defendants offered in evidence the original complaint for the purpose of showing “ the various claims made in this action,” but the counsel said he did not offer the complaint in evidence absolutely. It was excluded. Formally the ruling wras right, for if the parties had a right to offer the complaint for a limited purpose, still the offer itself must be absolute. It could not be limited or conditional. But an examination fails to show that the single claim made in the original complaint varied from the single claim' made in the amended complaint. The latter was fuller in its statement, but a jury could not have drawn from the difference of the two complaints an inference unfavorable to plaintiff.

The question to the plaintiff of whether one of the manufacturing firm was not dissatisfied with the statement of plaintiff was excluded properly. It simply called for testimony as to mental condition.

One of the manufacturing firm, when a witness, was asked whether the plaintiff stated to him that he was entitled to commission. There was nothing in the case that made it proper that the plaintiff should make such a statement, or probable that he would make it, after he had made his arrangement with the defendants, so that an omission to make it would affect an estimation of the probability of the arrangement having been made.

The other questions argued by the counsel for defendants have been examined. None of them call for a reversal of the judgment.

Judgment and order appealed from affirmed with costs.


text:
    SOLOMON REISS, et al., Respondents v. THE NEW YORK STEAM COMPANY, Appellants.

      Action for damages to personal property caused by defendants' negligence, interest on same, when allowed.

    In this case the judge of the trial term charged the jury, that if the plaintiffs were entitled to recover anything, they were entitled to recover interest on the amount of damages that the' jury allowed. Held, that in cases of this kind the plaintiff is not entitled absolutely to recover interest upon the amount of damages, but the jury should add interest if, in their judgment, such addition be necessary to give full compensation.
    The charge as made was not excepted to, but defendants’ counsel said he excepted to that portion of the charge which instructed the jury that if the plaintiffs recover they may be entitled to interest on the damages. If such had been the charge it would have been correct, but the form of the exception diverted the attention of the judge from the doubtful or incorrect part of the charge; therefore, Held, that the exception as made does not require the reversal of the judgment. Nevertheless, it cannot be affirmed that interest was given as compensation and not as matter of law; and lest injustice may have been done the judgment should not be upheld so far as the interest included therein from January 1, 1888, and judgment should be reversed and a new trial ordered unless plaintiffs stipulate that the verdict be reduced by deducting therefrom such part thereof as represents interest from January 1, 1888, and the judgment be modified accordingly, and in that case the judgment so modified is affirmed without costs of appeal.
    Before Sedgwick, Ch. J., and Freedman, J.

      Decided January 5, 1891.
    Appeal from judgment entered upon the verdict of a jury, and from an order denying the motion of defendants for a new trial upon the judge’s minutes.

      James W. Hawes, for appellants.

      Stern & Myers, attorneys, and H. A. Kingsbury of counsel, for respondents.
   Per Curiam.

An examination of the case shows that there was no error on the trial, unless in one respect, that will be considered.

The action was for damages for injuries to the personal property of plaintiffs caused by the personal negligence of defendants. The learned judge charged the jury, that if the plaintiffs were entitled to recover anything, they were entitled to recover interest on the amount of damages that the jury allowed. In actions of this kind, for the recovery of damages for injuries to personal property, the plaintiff is not entitled absolutely, and as matter of law, to recover interest upon the amount of the damage immediately caused by the negligence, but the jury in assessing the damages should add interest if, in their judgment, that be necessary to give full compensation. Mairs v. Manhattan R. E. Ass’n, 89 N. Y. 507, and cases there cited.

The charge as made was not excepted to, but the defendants’ counsel, at the end of the charge, said that he excepted to that part of the charge which instructs the jury that if the plaintiffs recover they may be entitled to recover interest on the damages. If such had been the charge it would have been correct; for it is true there may be a recovery for interest, if that be necessary to indemnity or compensation, and the form of the exception diverted the attention of the judge from the doubtful or incorrect part of the charge. Therefore, the exception would not require the reversal of the judgment.

. Nevertheless, it cannot be affirmed that interest was given as compensation, not as matter of law. And lest injustice may have been done, the judgment should not be upheld so far as the interest.

The judgment should, therefore, be reversed with costs to abide the event, and a new trial ordered unless the plaintiffs stipulate (de Carricarlio v. Blanco, 121 N. Y. 233) that the verdict be reduced by deducting from its amount such part of it as represents interest from January 1, 1888, and judgment correspondingly modified, and in that case the judgment, as modified, is affirmed without costs of appeal.


author: “ Dugro, J. Per Curiam.

text:
    SAMUEL ADAMS and Another, Appellants v. PATRICK McCANN, et al., Respondents.

      Banking, rights of bankers—Trust, when not impressed—Personal judgment, when not given in an equity action—Jury trial, when not waived.

    There being two depositors in a bank (husband and wife) having accounts therein, the husband drew a check on the bank against his account to the order of the wife, the wife deposited the check to her account, the bank charged the check to the account of the husband and credited it as cash to the account of the wife; after this the plaintiffs gave notice to the bank that the husband before giving his check to his wife had transferred to them the balance in bank to his credit. Held, that the title to the check had passed to the bank before notice of the transfer to the plaintiff, and the bank had a right to charge it up against the husband’s account.
    The evidence not showing that the wife had been, guilty of any fraud in obtaining the check or had acted in any way other than in good faith, or that she was other than a bona fide holder of the check for an existing debt. Held, that no trust was impressed on the amount of the check carried to her credit.
    The cause of action alleged in the complaint being an equitable one, and the cause having been tried before the court without a jury as an equity action, and the cause of action alleged in the complaint not having been proved, and the complaint not having been amended to conform to the proof, Held, that a personal judgment could not be had; and further, that even if the evidence disclosed the existence of a cause of action for a personal judgment, the defendant against whom it was so disclosed had a right to a trial thereof by jury.

      The defendant, Patrick McCann, at special term, proceeded on the trial before the court without a jury without demanding a jury trial. This was all that appeared in the case on the point of a waiver of a right to trial by jury. Held, that the case contained no evidence of any waiver of a trial by jury.
    Before Sedgwick, Ch. J., and Freedman, J.

      Decided January 5, 1891.
    Appeal from judgment of the special term dismissing the complaint at the trial, with costs.
    The complaint was as follows:
    “The plaintiffs above named, complaining of the defendants, by Adams & Boothby, their attorneys, respectfully show to the court, and allege:—
    “I. That on the . 16th day of April, 1885, the plaintiffs and the defendant, Patrick McCann, were copartners in business, doing business as retailers of dry-goods, at No. 357 Sixth Avenue, in the city of New York, under the ' firm name and style of Adams & Co.
    “ II. That on the 16th day of April, 1885, there was on deposit with the defendant, Garfield National Bank, the sum of $660, in the name of and to the credit of the defendant Patrick McCann, which sum of money had been derived from sales of goods and from the business of said firm of Adams & Co.
    “ III. That on the 16th day of April, 1885, the defendant, Patrick McCann, executed and delivered to the plaintiffs a bill of sale in writing, wherein and whereby he sold and transferred to the plaintiffs all his assets of whatsoever kind and sort pertaining to the business of said Adams & Co., and all his interest in the assets of said firm, including the said sum of money so on deposit with the defendant, Garfield National Bank.
    “IV. That notwithstanding the execution and delivery of said bill of sale, as aforesaid, the said Patrick McCann, on the morning of the 17th day of April, 1885, wrongfully and fraudulently drew a check on said Garfield National Bank to the order of his wife, the defendant, Maria McCann, without any consideration, as the plaintiffs are informed and believe, directing the said bank to pay to her order the said sum of $660, so deposited in said bank as aforesaid, and delivered the said check to his said wife, who thereupon presented the said check to the said bank and deposited the said sum to her own credit in said bank.
    “V. That plaintiffs are informed and believe that the said sum of money so deposited in said bank has never been withdrawn from said bank, but that upon presentation of said check by the defendant, Maria McCann, the said sum of money so deposited was marked and passed to the credit of said Maria McCann upon the books of said bank, and that it still remains on deposit in said bank, credited to the said Maria McCann under the name of Mrs. P. McCann.
    “ Wherefore plaintiffs demand judgment against, the defendants:
    “ 1. That the money so on deposit with the defendant Garfield National Bank be declared to be the property of the plaintiffs, and that the same be delivered over to the plaintiffs by the defendant Garfield National Bank.

      “ 2. That the defendants, Patrick McCann and Maria McCann, their agents, attorneys, servants and employees, and each of them, be restrained and enjoined, pending this action, from withdrawing any part of said sum from the said bank, and that the defendant, Garfield National Bank, its officers, employees, attorneys and agents, and each of them, be enjoined and restrained pending this action, from paying out to any person, other than plaintiffs, any part of said sum so on deposit in said bank.

      “ 3. That the defendants, Patrick McCann and Maria McCann, their attorneys, agents, employees and servants, and each of them, be perpetually restrained and enjoined from withdrawing or attempting to withdraw, or in any manner interfering with any part of the said money so on deposit in said bank, and that the defendant, Garfield National Bank, its officers, employees, agents and servants, be perpetually enjoined and restrained from paying out any part of the said money so on deposit with it to any person except to plaintiffs or to their order.
    “ 4. For the costs of this action.”
    Issue was joined by the answer of defendants Mc-Cann and the answer of the bank. The cause was tried before the court without a jury at a special equity term. Defendant McCann proceeded with the trial without objection or demand for a jury trial. The judge found, among other things, the following facts :
    “ That defendants have kept separate banking accounts with the defendant bank.
    “ That on the 16th day of April, 1885, at the office of H. B. Claflin, in the city of New York, the defendant, Patrick McCann, in consideration of the sum of $2,500, then paid to him by the plaintiffs, executed and delivered to the" said plaintiffs two certain instruments in writing wherein and whereby he sold and transferred to the plaintiffs, all his right, title and interest in and. to all the assets of every nature and kind whatsoever, then in the said store or in any way appertaining to or belonging to the retail dry-goods business carried on by the firm of Adams & Co., composed of the plaintiffs and defendant, Patrick McCann. That at the time of the execution of such instruments there was on deposit with the defendant, the Garfield National Bank, a sum exceeding $660; being the proceeds of the sales of the said goods in said business, between the 2d day of April, 1885, and the said 16th day of April, 1885, which deposit was a general deposit, and was in the name of the said Patrick McCann. That said moneys had been so deposited in that name for convenience, by arrangement between the plaintiffs and the said Patrick Mc-Cann.
    “ That, notwithstanding, that the said deposit stood in the name of Patrick McCann, the said deposit and the account against the said bank therefore was the property of the said firm of Adams & Co., and the interest of the said McCann therein was by the said instrument executed by the said McCann as aforesaid, transferred to the plaintiffs.
    “ That after the execution and delivery of said instrument the said McCann was, in respect to the said deposit and account, the agent and trustee of the plaintiffs.
    “That on the 15th day of April, 1885, the defendant Patrick McCann' drew a check on the defendant the Garfield National Bank in favor of the defendant Maria McCann for the sum of $660, and delivered the same to her, and she thereupon deposited the said check to her own credit in said bank, and said bank credited her account with the amount of the said check as cash.
    “ That the said sum of money so deposited in said bank to the credit of the defendant Patrick McCann was collected by and paid to the defendant Maria Mc-Cann in due course of business and that she deposited the same in said bank to her own credit, and that there is now on deposit in said bank to the credit of said defendant Maria McCann, as her property, a sum of money exceeding $660.
    “ That the defendant bank credited the amount of the check for $660 to the account of Maria McCann as cash, and received from her as a deposit the said chedk, before notice of the plaintiffs’ claims to or ownership of the deposit and account of Patrick Mc-Cann.
    “ That as to the defendant Maria McCann and the defendant the Garfield National Bank, the defendant Patrick McCann was the owner of the deposit and balance to his credit in the said bank at the time the check for $660 was credited by the bank to Maria McCann.
    “ That Maria McCann was a holder of the said check for $660 in good faith, and deposited the same as cash in the said bank, before notice to her of the ownership or claim of ownership of the deposit or account of the defendant Patrick McCann by the plaintiffs.”
    And found as conclusion of law:
    “ That the amount of money on deposit in the Garfield National Bank, and the account against said bank therefor, the subject matter of this action, standing to the credit of Patrick McCann on the 16 th day of April, 1885, to wit, the sum of $660, was a deposit in the name of the said Patrick McCann, in trust for the benefit of the firm of Adams & Company, and that after the transfer to the plaintiffs, by the said Patrick McCann, of his interest in such deposit and account as a member of the said firm of Adams & Co., on the 16th day of April, 1885, the deposit and account against the said bank therefor was in the name of the said Patrick McCann in trust for the benefit of the plaintiffs.

      “ That the instruments referred to in the foregoing findings of fact, dated April 16th, 1885, and executed by and between the said Patrick McCann and the plaintiffs, and delivered on that day, operated to transfer to the plaintiffs in this action, and vest them with the title of the account in said bank of the said sum of money.
    “ That by the check transaction with the said bank, above referred to, the title of the account in said bank, aforesaid, was not transferred to the defendant, Maria McCann, and she was not the owner of the same at the commencement of this action.
    “ That the defendant Maria McCann was rightfully entitled to the check for $660, referred to, and that she is entitled to withdraw the said sum from the Garfield National Bank.
    “ That the defendants are entitled to judgment dismissing the complaint and dissolving the injunction, with costs, as -to defendants McCann, and costs after notice of trial and before trial to the defendant bank.”
    From the judgment entered on these findings the plaintiffs appealed.
    The trial judge, upon deciding the case, wrote as follows:
   Dugro, J.

—The evidence establishes that on April 16, 1885, there was on deposit in the Garfield National Bank, to the credit of Patrick McCann, a balance exceeding $660, which had been derived from and was an asset of, a partnership business, conducted by plaintiffs and Patrick McCann, prior to and until the mentioned date; that this balance was, on said date, transferred by Patrick McCann to the plaintiffs, notice of which was given to the bank subsequent to April 18th; that on the 15th of April, preceding the transfer, the defendant Maria McCann received from Patrick McCann his check, drawn on the defendant bank to her order for $660, in part payment of an existing debt; that on April 18th, this check was deposited in the defendant bank to the credit of Maria McCann, and credited to her account as cash; that the defendants McCann had and kept separate ordinary banking accounts with the bank, making deposits with and drawing checks upon the latter as occasion required.

“The plaintiffs ask that the defendant Maria Mc-Cann be perpetually restrained from withdrawing from the bank, and the bank from paying, $660, claimed to be the proceeds of the check, and that this sum to the credit of Maria McCann’s account be declared their property, etc.

“ As the ordinary relation of banker and depositor existed between the McCanns and the bank, their accounts were subject to the ordinary rules applicable to bankers’ accounts, one of which is that if a check is deposited in the ordinary way of business to the credit of a person’s bank account, and by the bank placed to the credit of the depositor as cash, the effect of the transaction is to make the bank debtor to the depositor for the amount of the check, and to pass the title to the check to the bank. Justh v. National Bank of the Commonwealth, 56 N. Y. 478.

“The bank, having received its title to the check prior to the receipt of notice of the transfer by Patrick McCann, has a right to charge it up against the latter’s account.

“ The defendant Maria McCann can be restrained, as plaintiffs ask, only if it appears that a trust is impressed upon $660 of the amount to her credit in the bank, of which trust she is the trustee for the plaintiffs as cestui que trust. The facts presented by the evidence do not warrant a finding that she has been guilty of any fraud in obtaining the check, or acted in any way other than in good faith, or is other than a bona fide holder of the check for an existing debt; and, with this so, no trust or agency can be held to have been created in plaintiffs’ favor.

“ In the absence of such a trust or agency, the rule seems to be that it is only cto the extent of the interest remaining in the party who committed the fraud, that money can be followed as against an innocent party, having a lawful title, founded upon consideration; and, if it has been paid, in the ordinary course of business, either upon a new consideration, or for an existing debt, the right of the party to follow the money is gone. Justh v. National Bank of the Commonwealth, supra.

Gildersleeve, Palmer & Boothby, attorneys, and John W. Boothby of counsel, for appellants, argued:—

I. The complaint alleged all the facts necessary for a recovery of a personal judgment for the amount of the deposit belonging to the plaintiffs, and wrongfully transferred by the defendant McCann to his wife, and the court found all the necessary facts for such a recovery. The mere fact that the prayer of the complaint was for equitable relief, does not preclude the plaintiffs from recovering any relief, legal or equitable, to which they may be entitled upon the facts stated in the complaint and proven on the trial. Fairchild v. Lynch, 42 N. Y. Supr. 265; Steinberger v. McGovern, 56 N. Y. 12; Hale v. Omaha National Bank, 49 Ib. 629; Stevens v. The Mayor, 84 Ib. 304.

This rule seems indispensable to the safe transaction of commercial business.

“ The plaintiffs, in their brief, ask that, if judgment cannot be given as prayed for in the complaint, a judgment for $660, the amount of the deposit, should be given against the defendant Patrick McCann, and refer me to section 1207 of the Code, and several authorities, as warranting such a disposition of the case as against him.

“A judgment against this defendant cannot be had in this action, as no cause of action, alleged in the complaint, has been proved, nor has the complaint been amended so as to conform to the proof.

“I might also add that if the existence of a cause of action against Patrick McCann has been disclosed by the evidence, it is, if one he has, a right to have passed upon by a jury.

“ There should be judgment for the defendants, dismissing the complaint, with costs to the defendant McCann, and costs after notice of trial and before trial to the bank.”

II. Patrick McCann was not entitled to a jury trial on that issue. The action was brought upon a state of facts upon which the plaintiffs claim they were entitled to equitable relief, a,nd such relief was sought. It was therefore within the jurisdiction of the court of equity, and the court, although denying equitable relief, may retain the action and give a personal judgment. Van Rensselaer v. Van Rensselaer, 113 N. Y. 207, 214 ; Fairchild v. Lynch, supra.

III. But, even if the defendant Patrick McCann was originally entitled to a jury trial in this action, he waived it by noticing the case for special term and trying it there without objection, or demand for a jury trial.

IV. The court erred also in not granting the plaintiffs the relief they demanded in the complaint. In support of his position, the learned judge who tried the case, cited the case of Justh v. National Bank of the Commonwealth, 56 N. Y. 478. That case is not a parallel one, and is not decisive' of the point. There was no question in that case of following the property in equity; and even if there had been, it was not a parallel case to the one at bar; nor is the case of Oddie v. The National City, 45 N. Y. 738. In the case at bar the deposit in the bank on the day of the transfer to the plaintiffs was simply a cause of action against the. bank nominally in favor of Mr. McCann, but in fact the property of the plaintiffs. That chose in action has never, been collected, and the bank, in a suit to collect it, brought by Mrs. McCann, the apparent owner of it, it would be a perfect defence, even under the rule laid down in the case cited, by showing that when McCann’s check was presented by Mrs. McCann, and the credit given her, McCann had no title to the account and transferred none to his wife. If this be so, then no money was ever paid Mrs. McCann, and it was exactly as if McCann had held a note or a Government bond as the agent or trustee of the plaintiffs, and had transferred the same wrongfully to his wife in payment of his individual debt, conceding, for the sake of the argument, that there was a debt. No one will contend that such a bond or note so transferred could not be reached by the plaintiffs in the hands of Mrs. McCann, either by replevin or by an action in equity to recover it. 2 Perry on Trusts, § 828 ; Wetmore v. Porter, 92 N. Y. 76. But the courts have even gone farther than that, and said that where a party receiving money or property belonging to another person, either in law or in equity, and wrongfully disposed of by that person in the payment of his individual debt, may be recovered from the person who receives it, and the fact that he received it without knowledge of such conversion would be no defence, unless he not only had no knowledge of the title of the property, but also paid a valuable consideration for it, and an antecedent debt is • not such a consideration. Brown v. Houck, 2 N. Y. St. Rep. 194, 196. And in Denton v. Merrill, where money was received in a fiduciary capacity by a member of a firm individually, and by him paid over to his firm and credited on the books of such firm to such partner, the court, holding that such trust fund could be followed into the hands of such firm, said: “ The mere fact of its deposit to the credit of the firm (i. e. in the firm bank) did not relieve it from its character of trust funds, so as to defeat the right to follow and recover it as such.” Denton v. Merrill, 5 St. Rep. 391. Here all the parties, as we have said, are before the court. The bank has never paid out the money and nobody has actually received the money. In other words, the bank owed a debt which they have never paid, an'd the question is brought up, all parties being in court, where perfect justice can be done, to whom shall it be paid ?

V. If the account against the bank for the deposit has never been collected, the court has the power to grant the equitable relief asked in the' complaint. Merritt v. Thompson, 3 E. D. Smith, 294.

Samuel Greenbaum, attorney for respondent McCann, and of counsel for respondents, argued:—

I. The plaintiff cannot maintain his cause of action. The learned trial judge, in his opinion has correctly stated the rule with respect to deposits with a bank. Justh v. National Bank of the Commonwealth, 56 N. Y. 478; Oddie v. National Bank of New York, 45 N. Y. 735. There being no fraud alleged, and none attempted to be proved in the case, upon what theory can the plaintiffs maintain the action against the defendants ?

II. Plaintiff should not succeed in this case, as he has not made out a case of equitable relief. It is a well settled rule that a court of equity will not grant an injunction in a case where the plaintiff has an ample remedy at laiv. This proposition is so well settled» that it is unnecessary to cite authorities in support thereof. There can be no doubt that if there was any fraud or collusion of any kind that plaintiffs would have their remedy against the defendants .in an action for damages. But the evidence amply shows that there was no fraud.

Per Curiam.

The judgment should be affirmed, with costs, upon the opinion of the trial judge at special term. As to the claim made upon this appeal that the plaintiffs should have had .at least a personal judgment against Patrick McCann for the reason that the latter waived a trial by jury, it should be said that the case contains no evidence of any such waiver.


author: By the Court.—Freedman, J. Ingraham, J. (dissenting).

text:
    MARY LYNCH, Respondent v. THE THIRD AVENUE RAILROAD COMPANY, Appellant.

      Negligence, action to recover damages for injuries caused thereby—Exceptions to evidence received on the trial under objection.

    In this ease there were many objections to testimony offered by the plaintiff which were overruled and the testimony received and exceptions taken. The allegations of injury and damage in the complaint were as follows : “ and that by reason of the carelessness of the said defendant, its agents, servants and employees, this plaintiff sustained serious damage both to her person and her property, and was obliged to, and actually did incur liability for surgical and other treatment and attendance in seeking to restore herself of her injury, to her damage five thousand dollars.”
    Dr. Jennings, who attended the plaintiff, was a witness on the stand on the part of plaintiff, and during his examination was asked the following question by plaintiff’s counsel. Q. Is the injury which she has received to her back and spine, in your opinion, a permanent injury ? Objected to as not pleaded in the complaint. Objection overruled and defendant excepts. The witness answered, I believe the injury to her back is permanent—progressing. By progressing I mean that she is now just in about the second stage of paralysis to that limb, you might call it. Held, that none of the exceptions taken to the admission or exclusion of evidence, is, under all the circumstances, of sufficient importance to call for a reversal, and, upon the whole ease, no valid reason appears for disturbing the verdict. Ingraham, J., dissenting.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided February 4, 1891.
    Appeal from judgment entered upon the verdict of a jury, and from order denying defendant’s motion for a new trial.

      Hoadly, Lauterbach & Johnson, attorneys, and William A. Cohen of counsel, for appellant, argued:—

      That the court erred in allowing the question put to plaintiff’s witness, Dr. Jennings, and that the evidence was inadmissible under the pleadings, reviewing the following cases. In Stevens v. Rodger M’f’g Co., 25 Hun, 54 (Fourth Dep’t, Mullen, Talcott and Smith, JJ.), the facts are stated thus (p. 54): “The action was brought to recover damages for an assault and battery. The gravamen of the charge in the complaint was that defendant struck the plaintiff with his clenched fist, in her face, upon her right cheekbone, and cracked the bone of the cheek and loosened the bones under the plaintiff’s skull. At the trial the plaintiff was permitted to give evidence tending to show that paralysis of the right arm had resulted from the blow. The testimony was objected to on the ground that the particular injury thereby attempted to be shown -was not specified in the complaint. The objection was overruled and defendant excepted.” Whereupon Judge Smith says (pp. 54 and 55): “We think the objection to the evidence was overruled erroneously. The general rule is that special damages, that is, such as, although the natural, are not the necessary result of the act complained of, and consequently are not implied by the law, must be particularly stated in the complaint, in order to prevent a surprise upon the defendant, or the plaintiff will not be permitted to give evidence of them at the trial. 1 Ch., Pl. [14th Am. ed.], 338, 396; 2 Gr. Ev., § 254; Armstrong v. Percy, 5 Wend. 538; Squier v. Gould, 14 Ib. 159. The rule is a salutary one and it applies with full force under the Code. Doubtless the trial court had power to allow an amendment of the complaint, upon proper terms, by asserting an allegation of the special damage sought to be proved, but no amendment was ordered and none was asked for. The correctness of the ruling is to be tested, therefore, on the complaint as it stood, not as it might have been changed by amendment.

      Tooker v. Arnoux, 76 N. Y. 397.” In Uertz v. Singer M’f g Co., 35 Hun, 116 (Fourth Department), Judge Follett, with whom concur his colleagues, Hardman and Boardman, JJ., says (p. 117): “ It is not alleged in the complaint that the injuries sustained by the wife are permanent, or that she will be less able, in the future, to render services by reason of the injuries, nor is it alleged that erysipelas or any unusual condition ensued from the injuries, and evidence of these facts was inadmissible under the complaint had it been objected to on that ground. Gilligan v. N. Y. & Harlem R. R. Co., 1 E. D. Smith, 453; Stephens v. Rodger M'f'g Co., 25 Hun, 54; Whitney v. Hitchcock, 4 Den. 461; 2 Thompson on Negligence, 1250, §§ 32, 33; 2 Sedge, on Dam. [7th ed.], 606; 1 Chitty’s Pldgs. [16 Am. ed.], 411, 515; Mayne on Damages, Chap. 17; Heard’s Civil Pldgs., 310 to 314.” As Judge Earl says in Southwick v. Bank of Memphis, 84 N. Y. 420, 429, “It is no answer to this objection that the defendant was probably not misled in his defence. A defendant may learn outside of the complaint what he is sued for, and thus may be ready to meet the plaintiff’s claim upon the trial. He may even know precisely what he is sued for, when the summons alone is served upon him. Yet it is his right to have a complaint, to learn from that, what he is sued for, and to insist that that shall state the cause of action which he is called upon to answer.” Again in Romeyn v. Sickles, 108 N. Y. 650, Chief Justice Ruder, having stated that (p. 652,) “It is a fundamental rule that judgment shall be secundum allegata et probata, and as was said in Day v. Town of New Lots, 107 N. Y. 148, ‘any departure from that rule is certain to produce surprise, confusion and injustice,”’ continues thus (p.653): “There are cases which, having proceeded in disregard of the pleadings, and wherein the whole case has been presented by both parties in their proofs without objection, in which an amendment has been allowed, after the evidence is closed, to conform pleadings to the proofs; so, also, where the court can see that a trial has been had upon the real issue without objection, it will not disturb a recovery on the ground that it was not embraced in the pleadings; but when the objection has been properly taken, or an exception presents the question, it is fatal to a recovery that it does not conform in all material respects to the allegations of the pleadings.”
    If plaintiff claim, as with show of reason it seems to us she cannot, that the language of the complaint is possibly broad enough to cover permanent damages, it is a conclusive answer, that any doubt must be solved in favor of the defendant in accordance with the long established maxim of contra proferentem, or that language, especially in pleadings, is to be construed against him who furnishes the phraseology thereof. Nor at the present day has this ancient rule been at all relaxed, as Chief Justice Either says in Clark v. Dillon, 97 N. Y. 370, 373. It matters not that the court believes the evidence was not calculated to affect the jury in any great degree. As Judge Allen says (p. 187), in Baird v. Gillett, 47 N. Y. 186, “ The evidence was improper; and, as the court cannot say that it might not have * * * influenced the result, its admission under objection was error, for which the judgment should be reversed.” To the same effect are Williams v. Fitch, 18 N. Y. 546 ; Canaday v. Krum, 83 Ib. 67. Indeed, if the evidence could in any degree and by any possibility have affected the jury’s verdict, the court will presume that it did. Furst v. Second Ave. R. R. Co., 72 N. Y. 542-7.

      Henry W. Bates, attorney and of counsel, for respondent, argued:—
    At folio 8 the complaint reads as follows : “ and that by reason of the carelessness of the said defendant, its agents, servants and employees, this plaintiff sustained serious damage both to her person and to her property.” Under this allegation of serious damage it was competent to show that the damage was permanent. All serious damages are not permanent, and all permanent damages are not necessarily serious. A serious damage or injury may be recoverable or permanent in its character, and to show the measure of the damage it is proper to introduce expert evidence and to inquire under the term “ serious ” whether an injury is permanent. To show the nature and extent of the injury and suffering, it is competent to give evidence of their continuing effect up to the time of the trial. Sheehan v Edgar, 58 N. Y. 631, and cases cited, and their probable effect in the future. Caldwell v. Murphy, 1 Duer, 233; 11 N. Y. 416; 31 Ib. 314.
   By the Court.—Freedman, J.

The action was brought to recover damages for personal injuries sustained by the plaintiff, in attempting to get on board of one of the cars of the defendant. Upon the testimony of the plaintiff the case was one for the jury, and the trial judge properly refused to dismiss the complaint or to direct a verdict. There is no exception to the charge, or to any refusal to charge otherwise. None of the exceptions taken to the admission or exclusion of evidence is, under all the circumstances, of sufficient importance to call for reversal, and upon the whole case no valid reason appears for disturbing the verdict.

The judgment and order should be affirmed with costs.

Sedgwick, Ch. J., concurred.

Ingraham, J. (dissenting).

I think the objection to the question asked Dr. Jennings, the medical expert called for the plaintiff, as to the permanent character of the injury, should have been sustained. The only allegation in the complaint as to the character of the injury, is that plaintiff “ sustained serious damage to her person and property.” There is no allegation that the injury caused pain and suffering, or that the injury was permanent, or that she was, at the time of the commencement of the action, suffering from the effects of the injury. No fact is alleged from which the inference can be drawn that there was any permanent impairment of her physical condition. The objection to the question was that it was not pleaded in the complaint. That objection was overruled and defendant excepted.

It cannot be said that permanent or progressive paralysis is the necessary or usual result of such an injury as is described in the complaint, and the complaint does not allege that such a result followed from the injury, or such a disease was caused by the act complained of. It is the damage sustained before the commencement of the action which the plaintiff alleges amounted to' $5,000, and such damage is alleged to have been caused by the injury to her person and property, and because she was obliged to and did incur liability for surgical and other treatment and attendance in seeking to restore herself of her injury.”

There is not the slightest indication given to the defendant by these allegations of the complaint that the injury caused by the act complained of was of such a nature as to interfere with the future use by the plaintiff of her physical faculties, and it left the defendant unprepared to meet the proof offered to sustain such an issue.

General damage is defined as that which necessarily and by implication of law results from the act or default complained of: special damages such as arise directly but not necessarily or by implication of law from the act or default complained of. 1 Bouvier’s Law Dictionary, p. 467.

In Chitty on Pleading, vol. I, p. 428, general damages are defined as such as the law implies or presumes to have accrued from the wrong complained of: special damages are such as really took place and are not implied by law.

In 2d Greenleaf on Evidence, § 254, it is said, “Those which necessarily result are termed general damages, being shown under the ad damnum or general allegation of damages at the end of the declaration, for the defendant must be presumed to be aware of the necessary consequences of his conduct and, therefore, cannot be taken by surprise in the proof, of them. . . But where the damages, though the natural consequences of the act complained of. are not the necessary result of it, they are, however, special damages which the law does not imply, and, therefore, in order to prevent a surprise upon the defendant they must be particularly specified in the declaration or the plaintiff will not be permitted to give evidence of them at the trial.”

The distinction between special and general damages in cases of this character is stated in Gumb v. Twenty-third Street R. R. Co., 114 N. Y. 414, “ where a plaintiff alleges that his person has been injured and proves the allegation, the law implies damage, and he may recover such as reasonably flow from the injury (which are called general damages) under a general allegation that damages were sustained ; but if he seeks to recover damages from consequences which do not necessarily and immediately flow from the injury (which are called special damages) he must allege the special damages which he seeks to recover.”

Judge Smith, in Stevens v. Rodger, 25 Hun, 54, says, “ The general rule is that special damages, that is, such as although the natural are not the necessary result of the act complained of, and consequently are not implied by the law, must be particularly stated in the complaint in order to prevent a surprise upon the defendant, or the plaintiff will not be permitted to give evidence of them at the trial. See also Armstrong v. Percy, 5 Wend. 535.

It appears from these authorities that the damages that may be proved under the general allegation of damages are such as are implied by law, and that the law implies only such as necessarily result from the act complained of. It is not enough that the damage sought to be proved may directly result from the injury, but the damage must be the necessary result so that such result can be implied by law.

I do not think that the necessary result of a person being dragged behind a street car which causes serious damage to his person and property is a permanent injury to the person, or that from such an act the law could imply such permanent injury. It would of course be different if the complaint alleged that the act caused the loss of a limb or another injury of that character, for in that case it would necessarily follow that the loss of the limb would be permanent.

I think, therefore, that the judgment must be reversed and a new trial ordered, with costs to abide the event.


author: By the Court-.—Ingraham, J. Sedgwick, Ch. J., (dissenting).

text:
    SARAH A. CARSON, Respondent v. SIMON DESSAU, et al., Appellants.

      False imprisonment, action for, against two defendants; evidence must establish contributory acts of both sufficient to establish conspiracy between them to procure the same.

      Held, that there was no evidence on the trial to sustain the verdict or a finding, that Simon Dessau instigated or requested the plaintiff’s arrest. It was error, therefore, in the court to refuse to dismiss the complaint, and it was error to submit the case to the jury as one for a conspiracy between the defendants, as to which there was not a particle of evidence as against the defendant Simon Dessau, and it was an error that affected both defendants. Sedgwick, Ch. J., dissenting.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided February 4, 1891.
    Appeal from a judgment entered on verdict of a jury.

      Leon Lewin, for appellants.

      L. A. Gould, for respondent.
   By the Court-.—Ingraham, J.

The complaint alleged facts sufficient to constitute a cause of action for false imprisonment. The counsel for plaintiff stated at the commencement of the trial, that the complaint only alleged one cause of action, to wit; for a false imprisonment, and the case was tried throughout as such an action. For the purpose of this appeal, therefore, the cause of action must be considered as an action for false imprisonment.

The complaint alleges that plaintiff was arrested and imprisoned on a charge made by David Dessau, who acted on his own behalf and on behalf and at the. request and instigation of Simon Dessau.

There was absolutely no evidence to sustain the charge against Simon Dessau. Plaintiff testified that Simon was in the room when she entered. This was contradicted by. every other witness in the case, and I am inclined to think, on the whole evidence, if the verdict as against Simon Dessau depended upon his presence in the room at the time the plaintiff called, it should be set aside as against the weight of evidence.

But assuming that the plaintiff’s story was not so clearly disproved as to justify a reversal of the judgment as against the weight of evidence, there was no evidence to sustain a finding, that Simon instigated or requested the plaintiff’s arrest. According to her testimony Simon said not a word tha.t was heard during the time plaintiff was in the office. The direction to get an officer was given by David. When the officer came David made the charge, and said to the officer, “ I want you to arrest that woman for blackmail. She has come here to extort money from me and I don’t owe her any money. I don’t know her; she is a-stranger ; ” and David accompanied the officer and the plaintiff to a station house, and then renewed the charge to the sergeant.

The only act of Simon, testified to, was that he said a few words to David before the officer was sent for which plaintiff did not hear. Plaintiff was not arrested on a charge of any offence against Simon; he said nothing to the officer, nor to any one, about the charge ; did not go to the station house ; had nothing to do with the imprisonment. He was in the room; heard his father make a charge to the officer that plaintiff had committed an offence against his father and saw them walk off. There was nothing but the merest suspicion that there was' something said about the arrest in the few words that Simon spoke to his father which were not heard. So far as appears, Simon might just as well have advised his father not to make the charge as to make it; and that, upon such evidence, the jury should have found a verdict against Simon, satisfies me that in some way they misconceived their duty.

For the defence the defendants,- the police officer and several other apparently disinterested witnesses, positively swear that Simon was not in the office with the plaintiff at all, but was in an adjoining office, and had no conversation with his father at the time.

The court in submitting the case to the jury stated that the plaintiff’s claim was, that the defendants, David and Simon Dessau, wrongfully, unlawfully and maliciously concerted and conspired together and caused plaintiff’s arrest and imprisonment, and instructed the jury that if from all the circumstances they came to the conclusion that Simon Dessau was a party to the arrest and had conspired with David Dessau that the verdict should be against both defendants. The defendants excepted to this charge as to Simon Dessau being a party to the conspiracy. There was nothing said as to what the jury should do if they found there was no conspiracy, or under what circumstances David Dessau would then be held liable. The error, therefore, in refusing to dismiss the complaint as to Simon Dessau and submitting the case to the jury as one for a conspiracy between the defendants, as to which there was not a particle of evidence, was an error that affected both defendants, for it might well be, that if the jury had been instructed that there was no evidence of a conspiracy they would not have found the express malice which was necessary to justify the allowance of punitive damages, and the amount of the verdict shows that the jury must have awarded punitive damages as it is beyond any reasonable allowance for compensation.

This error was further emphasized by the ruling of the court upon several requests to charge, and considering that the verdict under the charge could only have been based upon a finding of a conspiracy which was without evidence to support it. The size of the verdict in face of the fact that the arrest of the plaintiff was made because of an attempt to collect a claim from one of the defendants by a threat to publish a statement against him in a newspaper, which would have been a felony if the threat had been in writing, and that plaintiff was convicted of disorderly conduct which would have justified the arrest, if a warrant had been obtained. It would appear that the jury intended to punish the defendant Simon Dessau, for the prior conduct rather than to redress the wrong done the plaintiff, and that justice requires that there should be a new trial.

Judgment reversed and a new trial ordered, with costs to abide the event.

Freedman, J., concurred.

Sedgwick, Ch. J., (dissenting).

In my judgment there was evidence to support the verdict against Simon Dessau and David Dessau. The rule seems to be correct as given in 3 Greenlf.’s Ev., § 41. It is that mere bodily presence, without an attempt to prevent a crime, though it will not of itself constitute guilty participation, is evidence from which a jury may infer assent and concurrence. The note 6 to the section cites from Brown v. Perkins, 1 Allen, 98, that “ proof that a person is present at the commission of a trespass without disapproving it or opposing it, is evidence from which, in connection with other circumstances, it is competent for the jury to infer that he assented thereto, lent to it his countenance and approval, and was thereby aiding and abetting the same.”

There are- several circumstances beside that of mere presence, that enabled the jury to determine that David Dessau assented to and concurred with Simon in causing the plaintiff’s arrest. One of these was that in his presence, with his knowledge, his clerk was sent to find the policeman that made the arrest. A permission to use an agency that he controlled was evidence for the jury as to assent to the purpose for which it was used.

The jury were at liberty to find the plaintiff’s testimony true in the face of its contradiction by the defendants. The jury might have found, for instance, that just before David Dessau sent for the policeman, he said something in a whisper to Simon. Assuming that this might be of itself no proof against Simon, yet when Simon denied that there was any such whispered conversation, the jury could find that the reason for the concealment of the fact was that, if the truth had been told, it would have appeared that Simon encouraged in that conversation the arrest. Similar considerations are connected with the rest of defendant Simon’s testimony which the jury discredited.

I think the judgment should be affirmed, with costs.


author: By the Court.—Ingraham, J.

text:
    ISRAEL J. MERRITT, Respondent v. AMERICAN DOCK AND TRUST COMPANY, Appellants.

      Work, labor mid service must be contracted for, accepted, or the benefit of the same availed of by the party to or for whom they are rendered to enable the party rendering the same to recover compensation.

    The plaintiff was the owner of certain steamboats, kept for the purpose of rendering assistance to disabled vessels or extinguishing fires, and the captains of two of such steamboats, seeing the defendants’ warehouse in flames on the 20th day of January, 1886, proceeded to the docks adjoining the warehouse and endeavored to extinguish the fire. There was no express request by the defendants to the plaintiff or his agents to render such service on the said 20th of January, although during the time that the plaintiff’s boats were present and assisting in extinguishing the fire one or more of the officers of the company defendant were present. It also appeared that the agents of the plaintiff were requested to withdraw their boats, by one of the officers of defendants, on the evening of the 20th of January. That on the succeeding day the fire broke out afresh, and one of the officers of the defendants directed a police officer to request the plaintiff to send back the boats, and in accordance with such request the boats were returned on the 21st, and rendered service until the 23d.
    The defendants moved to dismiss the complaint so far as the services were alleged to have been rendered on the 20th of January, 1886, on the grounds that the plaintiff was not employed on that occasion, or even requested by defendants to do any work or service. This motion was denied. The motion was renewed at the close of the testimony and again denied, to which denials defendants excepted.

      Reid, that the defendants did not employ the plaintiff on the 20th of January, 1886, and were not placed in such a position that they were bound to notify plaintiff, as soon as they became aware of the fact that he was endeavoring to put out the fire, that he must stop or the defendants would not be responsible, etc. That the defendants did not accept of the service rendered by the plaintiff on that day, and did not avail themselves of the same. All that can be said is that they did not object when they saw others joining with their agents in efforts to extinguish the fire. It cannot be held that, under such circumstances, the owners of property being destroyed by fire are under any implied obligation to pay those who voluntarily appeared and aided in putting out the fire or in saving the property.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided February 4, 1891.
    Appeal from a judgment entered upon the verdict of a jury.

      William L. Mullen, attorney and of counsel, for appellants.

      Henry W. Wheeler, attorney, and Henry D. Hotchkiss and William S. Maddox of counsel, for respondent.
   By the Court.—Ingraham, J.

—This action is brought to recover for work and services rendered in endeavoring to extinguish a fire, whereby defendants’ warehouse was destroyed, from the 20th to the 23d of January, 1886, both inclusive.

It appeared that the plaintiff was the owner of certain steamboats, kept for the purpose of rendering assistance to disabled vessels or extinguishing fires, and that the captains of two of such steamboats seeing the defendants’ warehouse in flames, on the 20th of January, 1880, proceeded to the docks adjoining the warehouse and endeavored to extinguish the fire.

There is no claim that there was any express request by the defendants to the plaintiff to render such service on the 20th of January. It appeared that on the evening of the 20th of January the agents of the plaintiff were requested to withdraw their boats, by one of the officers of the defendants; and that during the time that the plaintiff’s boats were present, assisting in putting out the fire, that one or more officers of the company were present. The plaintiff also produced evidence tending to show that on the following day, the fire having broken out afresh, one of the defendants’ officers told a police officer to request the plaintiff to send back the boats; that such request was communicated to the plaintiff’s ' agents, and that in response thereto the boats returned on the 21st and rendered service until the 23d. The giving of such an order was denied by defendants, but I am inclined to think that the evidence was sufficient to sustain a verdict for the plaintiff, if they believed the testimony of plaintiff’s witnesses, for the reasonable value of the services rendered on the 21st and on the subsequent days.

After the plaintiff had given his testimony, the defendants moved to dismiss the complaint so far as the services are alleged to have been performed on the 20th of January, 1886, for the reason that there was no pretence made that the plaintiff on that occasion was employed by defendants, or even requested by defendants, to do any work.

That motion was denied. The court held that the fact that the defendants stood by and received the assistance offered by plaintiff without any warning to him that they declined it, or that they would not compensate him for it according to what was fair and just, carried with it the implication of an intent on the part of the defendants to pay what was fair and right for the services rendered.

This motion was renewed at the end of the testimony and again denied. The court charged the jury—

That whenever one man, without the invitation of another, renders services or makes an offer to render services to another, and the other stands by and accepts the efforts of the first person, and uses whatever service his actions bestow upon them, the law infers a promise, upon the part of the man who has received the benefit, to pay for that benefit such sum as is fair and reasonable”—and directed the jury to apply this rule of law to this case.

We think that the rule stated by the learned judge had no application to the case at bar. The defendants, it is true, were the owners of the warehouse that was in flames. It appears, however, that they were largely insured, and that the warehouse was filled with goods belonging to others. Thus, it would appear that the insurance companies, and those having goods on storage with the defendants, were equally interested with the defendants in putting ' out the fire. • There was no more reason for the defendants to suppose that the services of the plaintiff were rendered for their benefit than for the benefit of the insurance companies or for the benefit of those having goods on storage. The defendants were not therefore placed in such a position that they were bound to notify the plaintiff, as soon as they were aware of the fact that he was endeavoring to put out the fire, that he must stop or the defendants would not be responsible.

The defendants had not employed the plaintiff, and there was no reason why the defendants should not have supposed that the boats had been sent by one of the other parties interested in the property.

The defendants did not avail themselves of the benefit of any of the services' rendered by the plaintiff. They did not accept such services. All that can be said is that they did not object when they saw others joining with their agents in endeavoring to put out the fire. And I can see no ground upon which it can be held that, under such circumstances, the owners of property being destroyed by fire are under any implied obligation to pay all those who voluntarily appeared and aided in putting out the fire or saving the property.

The defendants excepted to the charge of the court, which states in substance that, if by legal inference a contract is presumed, the plaintiff is entitled to recover, and I think that ex-ception raises the question. It is true that the jury might have found an express employment on the 21st; but, in the way the case was submitted to them, they might have also found that, although there was no express employment on the 21st, the defendants were liable because they did not dissent, or refuse to allow, plaintiff to throw water upon the fire.

We think, therefore, the judgment appealed from should be reversed and a new trial ordered, with costs to appellants to abide the event.

Freedman, J., concurred.

Sedgwick, Ch. J., I concur in the result.