Majority
p. 554John J. Hicks, Resp’t, v. Lucius E. Chittenden el al., Appl’ts. (New York Common Pleas, General Term, Filed December 6, 1886.)
Headnote
1. Judgment—Ekhob.Where a judgment charges defendants in their individual capacity, it appearing by the record that plaintiff knew they were acting as agents, held, that the judgment should not stand.
2. Evidence—Question oe eact.
Whether or not plaintiff was employed as a “special detective” was a question of fact and not a matter of opinion, and all facts relating to such employment should be allowed in evidence.
J. L. Brower, for resp’t; J. M. JDrysdale, for app’lts.
I do not think this judgment should stand. The defendants have been charged upon their ■original responsibility, when it appears by the record that plaintiff knew they were acting as attorneys for Hatch & Peters. This alone should impeach the judgment.
It is manifest upon the papers submitted, that this is not a case of an undisclosed principal. The plaintiff knew of them, and asked if he should see Mr. Peters. The question of liability here involved is rally discussed ana decided in Buck v. Amiden, 4 Daly, 126 .
p. 555
Moreover, the exception at page 8 was well taken. "Whether or not plaintiff was employed as “a special detective ” was a question of fact, and not a matter of opinion. AH. the facts relating to the employment should have been allowed in evidence.
The judgment should be reversed, a new trial ordered, with costs to abide the event.
Daly, J., concurs. _