Duell v. Musgrove — 200 A.D. 835

Majority

p. 835

Holland S. Duell and Others, Copartners, etc., Respondents, v. Joseph Musgrove, as Ancillary Executor, etc., of George W. Houk, Deceased, Appellant.

Judgment unanimously affirmed, with costs. There was only one cause of action submitted to the jury, and that was the second cause of action stated in the complaint. It was based upon an employment of the plaintiffs directly by the defendant’s testator, and the question on this appeal is whether the evidence supports the finding of such a contract of employment. This question is raised by an appeal from the judgment. (Code Civ. Proc. § 1348; Laws of 1914, chap. 351.)^[1] The plaintiffs do not seek to recover under an agreement either oral or written between Houk and Munger. The allegation in the second cause of action stated in the complaint that such services were to be performed in connection with certain matters mentioned in an agreement made and executed between

* See Code Civ. Proc. § 1346.-[Rep.

p. 836

defendant's testator and one Hunger, is a specification of the nature and character of the services to be performed in order to identify them. The question of the employment was specially submitted to the jury, who found for the plaintiffs. The value of the services is not disputed in the appellant’s brief, and the evidence is ample to sustain the verdict that the defendant’s testator directly employed the plaintiffs to perform these services. Present — Blackmar, P. J., Mills, Rich, Jaycox and Manning, JJ.