Press Publishing Co. v. Baker — 36 N.Y. St. Rep. 879

Majority

p. 879

The Press Publishing Co., Resp’t, v. Seward Baker, App’lt.

New York Common Pleas, General Term,

Filed April 6, 1891.)

Headnote

Publication—Legal notices—Compensation for.

While it may not be obligatory upon a newspaper to print a summons or legal notice, even though the same be directed by the court to be inserted in its columns, yet, if it do such printing without 9 special agreement, the parties will be deemed to have contracted with reference to § 3317 of the Code, and the compensation will be limited ¿by the rates so fixed.

Action to recover compensation for publishing summons and notice required by law, service by publication thereof having been directed by the court, and plaintiff’s newspaper, “The World,” being one of the papers designated for the purpose of such publication. Appeal from judgment in favor of the plaintiff, entered upon the verdict of a jury in the second district court.

Samuel L. Cross, for resp’t; Irving Washburne, for app’lt.

Upon the trial of this action the justice ruled that the plaintiff was not confined to the rates prescribed by § 3317 of the Code of Civil Procedure, and plaintiff was permitted, against defendant’s objections and exceptions, to recover in excess of those rates. This, we think, was error, for which the judgment should be reversed. Plaintiff, having performed the services requested by the defendant, could, in the absence of an express agreement fixing the amount of compensation, at common law only recover what the services were fairly and reasonably worth. Lawson’s Rights, Remedies and Practice, vol. 1, § 245, p. 444, and § 266, p. 465, and cases cited; Booth v. Bierce, 38 N. Y., 463 ; Konitzky v. Meyer, 49 id., 571 .

In respect, however, to the publication of a summons and other papers specified therein § 3217 has ¿abrogated the common law

p. 880

rule, and while it may not have been obligatory upon the plaintiff to publish the summons and notice at all, yet, having done ,so without any promise by defendant to pay any other compensation, both contracting parties must be deemed to have made their, agreement with reference to the law as it existed at the time, and with notice and the knowledge of which they were alike chargeable. ■ Wait’s Actions & Defenses, vol. 2, p. 286, § 8, and authorities cited.

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

Pryor,'J., concurs.