Howe v. Woolsey — 57 N.Y. St. Rep. 507

Majority

p. 507

William F. Howe et al., Resp’ts, v. Edward J. Woolsey, App’lt.

(New York Common Pleas, General Term,

Filed February 5, 1894.)

Headnote

I. Appeal—Case.

In the absence of a certificate that the case contains all the evidence taken on the trial, the facts are not brought before the general term of the common pleas on appeal from the city court.

2. Same—Verdict.

A verdict in favor of a party is conclusive upon the subject submitted, where there is evidence to support the finding independent of his testimony.

3. Evidence—Co-partnership.

In an action by a firm, evidence of agreement, not made by a member of the firm, or one who had authority to bind it in the matter, is incompetent to establish a counterclaim.

4. Same.

In such action, evidence of an individual transaction with a member of the firm is inadmissible.

5. Same—Opinions.

The opinion of an attorney as to the amount for which a divorce could have been settled prior to a default is properly excluded.

Appeal from a judgment of the general term of the city court affirming a judgment entered on the verdict of a jury at a trial term of that court.

David May, for resp’ts.

Wells c6 Waldo, for app’lt.

J. This action was brought to recover the sum of $500 for legal services rendered to the defendant in various suits between April 12th, 1892, and the 20th day of March, 1893. There is. no statement in the appeal book that the case contains all the evidence taken on the trial, and that it does not, is clear from the fact that it shows two exhibits I and J were received in evidence which are not printed therein. It has been repeatedly held that in the absence of such certificate the facts are not brought before the court at general term for review, much less before this court on appeal from the city court; Hyman v. Friedman, 18 N. Y. Supp. 446 ; 45 St. Rep. 630 ; McIntyre v. Tucker, 5 Misc. Rep. 223 ; 54 St. Rep. 816 ; there the distinction between the use of the words “ testimony ” and “ evidence ” is pointed out; Aldridge v. Aldridge, 120 N. Y., 614 ; 31 St. Rep. 948 ; Upington v. Pooler, 19 N. Y., Supp. 428 ; 47 St. Rep. 30 ; Dibble v. Dimmick, 23 N. Y. Supp. 680 ; 53 St. Rep. 225 ; McCarthy v. Gallagher, 4 Misc. 188 ; 53 St. Rep, 176 ; Halpin v. Phoenix Ins. Co., 118 N, Y. 166 ; 28 St. Rep. 788 ; Brayton v. Sherman, 23 N. E. Rep. 471 ; 28 St. Rep. 854 ; Porter v. Smith, 107 N. Y., 531 ; 12 St. Rep. 579 ; Claflin v. Flack, 13 N. Y. Supp. 269 ; 36 St. Rep. 728 . We cannot therefore inquire as to whether or not the verdict is for excessive damages or against the weight of evidence but are confined strictly to any alleged errors of law that may have been committed during the progress of the trial.

p. 508

And the first of these is that the verdict is contrary to law. This contention is based npon the fact the complaint alleges that at divers times during the years 1892 and 1893 at the special instance and request of the defendant the plaintiffs rendered certain professional services to him which were reasonably worth the sum of $500 which he promised and agreed to pay; while the evidence is undisputed that the defendant on the 28th of June, 1892 gave the plaintiffs an order for $250 which was subsequently paid, and that therefore under the complaint there could be a recovery for only $250. But the fact of the payment of this $250 was brought out on the examination of one of the plaintiffs who testified not only to this but also to the further fact that this sum was not received on account of the the services sued for but as retainer and for services rendered before those to recover the value of which this action is brought, and the other evidence adduced on the trial seems to us to corroborate this testimony. The witness being an interested one, it was a proper question to be submitted to the jury on all the evidence, and as we read the charge, was properly submitted to them and their verdict in favor of the plaintiff is conclusive upon that subject as there was evidence to support the finding independent of plaintiff’s testimony. Under the evidence we think that such a verdict did follow the allegations of the complaint and is not obnoxious to the rule that judgment should be secundüm allegata et probata.

For the reasons above stated we also think it was not necessary for the plaintiffs to have asked to amend their complaint to conform it to the proofs.

We do not think it an error to admit the letters in evidence by the plaintiffs, as it was a correspondence commenced by the defendant himself and referred to and threw light upon the question in controversy between the parties, and seems to have been naturally written in the usual course and for the purpose of procuring an adjustment of plaintiff’s claims..

Appellant also contends that the court erred in excluding evidence as to defendant’s losses occasioned by the alleged neglect and mismanagement of his business in the matter of forming a corporation to improve and put on the market defendant’s Long Island City lands. The answer sets this forth as a counterclaim against any recovery plaintiffs might make in this action, and in doing so, alleged that the agreement had been made with one Benjamin Steinhart on behalf of the plaintiffs’ firm which the answer had previously alleged him to be a member at the time. This evidence was offered and rejected. It had affirmatively appeared that Steinhart was not a member of plaintiffs’ firm and there was no evidence to show he had authority to bind that firm in the matter which he undertook, if it was undertaken at all; and consequently there could have been no recovery as against the plaintiff on such a claim, and the evidence was properly excluded.

Appellant also claimed that the court erred in excluding evidence as to the amount of moneys due one Samuel E. Eork from Steinhart and one of the plaintiffs, for which Steinhart, as appel

p. 509

lant claims, had unlawfully pledged certain- stock belonging to him. But as before stated, Mr. Steinhart was not a member of plaintiff’s firm, and the debt due Rork from Hummel, if any, was an individual transaction between him, Steinhart, and Rork, for which the plaintiffs’ firm was in no way responsible, and it could not be made the subject of an offset or counterclaim as against it

In his answer, the defendant set forth as a defence a counterclaim that the plaintiffs had mismanaged and neglected his business in that they had allowed one of bis cases in court to go by default. In the trial it appeared that this had reference to the fact that the plaintiffs while acting as his attorneys had. suffered a default to be taken against their client for divorce brought by his wife against him. And to further maintain this issue defend, ant called as a witness, Weeks W. Culver, a lawyer, and propounded to him a series of questions asking for his opinion as to the amount which the divorce case could have been settled prior to the default; which were excluded by the count and exceptions taken. We think the court properly sustained the objections, as the questions only called for mere expressions of opinion upon the matter and not for facts, and this reason was given by the court when it excluded the evidence. The other questions asked of this witness and excluded were clearly irrelevant and inadmissible.

The judgment should therefore be affirmed with costs.

Cases cited

McCarthy v. Gallagher 4 Misc. 188 N.Y.C.P. p. 507