Thornton v. Tuttle — 7 N.Y. St. Rep. 801

Majority

p. 801

George H. Thornton, et al., Resp’ts, v. Richard T. Tuttle, Mary J. Olin, individually and as Ex’rx, et al., App’lts.

(Supreme Court, General Term, Fifth Department,

Filed April 19, 1887.)

Headnote

1. Attorney and client—Authority of attorney—Scope of.

As to such matters as come within the conduct and management of the action in which he is employed the relation of an attorney to his client is that of agency.

3. Same—Authority extends to employment of stenographer to take TESTIMONY.

The method of taking evidence with a view to completeness and accuracy as well as expedition, is a matter for the judgment of the attoi ney. The use of stenography is neither unusual or unreasonable And ordinarily the employment of that means to take the testimony, and the furnishing of a long hand copy, would come within the scope of the attorney's authority.

3. Same—Authority not limited by rule of court as to method of TAKING TESTIMONY.

So long as the evidence may be made available in court for the purposes for which it is taken the authority of" the attorney is not qualified by the fact that the rules of the United States circuit court contemplate that the testimony in equity cases will be taken by the examiner, and the deposition of witnesses read over to and signed by them respectively.

4. Same—Secret instructions qualifying authority—do not affect RIGHT OF PARTY EMPLOYED.

Held, that the right of action of a stenographer, for compensation for taking testimony in an action, at the reguest of the attorney, for a party, was not affected by any secret instructions given by the client qualifying the authority of the attorney.

5. Evidence—Conclusion as to consistency of.

In an action for the recovery of compensation for services performed as stenographer. Held, that it was within the power of the referee to conclude that conversations had, in the presence of one of the plaintiff’s about presenting the question to the court, as to which of the parties should pay these charges, his affidavit made with that view, and his correspondence as to the claim andas to the means of having it allowed in view of the explanatory circumstances, appearing in the evidence were not inconsistent with the plaintiffs’ claim.

Appeal from judgment entered upon report of a referee against the defendants.

J. B. Adams, for app’lts; Charles A. Pooley, for resp’ts.

The action is brought to recover for services of the plaintiffs as stenographers alleged to have been performed for the defendants upon the employment in their behalf by their attorney in the action in which the services were performed. The action was in equity in the United States circuit court for the Northern district of New York, in which the defendants in this action were complainants, and Mr. Duell was then- solicitor and counsel The defendants were Loomis and Tolies, and Mr. Stewart was their counsel. The defendants there asserted and desired to establish that there was privity between the complainants

p. 802

in such action, find the complainants in another action pending in the United States circuit court for the Western district of Michigan, in which Reed and others were complainants and Chase and others defendants, and on their application a reference was directed to a special examiner to take testimony on that question and report it to the court. And this order directed that it should be taken at the expense of the defendants in that'action.

They proceeded to take the proofs, and to aid in that respect, and at the request of their counsel, Mr. Stewart, the plaintiff Thornton (a member of the firm of Thornton, Briggs & Close) took the testimony on their part, with the consent of the plaintiff’s solicitor, as appears by a stipulation entered by the' stenographer in the minutes, by which it was “stipulated that the testimony may be taken by a stenographer, and signed by the witnesses upon the stenographic notes, and that the.reading of the testimony by the witnesses is waived.” On the close of the proofs on the-part of the defendant in that action, the complainants proceeded to take testimony in their behalf at Perry, N. Y.; Kalamazoo, Mich., and Cleveland, Ohio; and it was taken by the plaintiff Thornton. The defendants in that action paid him for taking the testimony put in by them. And they and the complainants refused to pay for talcing that introduced by the letter. It is for compensation for taking this that this action is brought, and the recovery had. And the referee has found that after the close of the proofs on the part of the defendants in that action, Mr. Duell, acting as such attorney and counsel for these defendants, employed Thornton as such stenographer to take the testimony of the witnesses then to be examined in their behalf before the examiner, and agreed with him that his clients, the defendants, would pay him for so doing, and that in pursuance of such employment the plaintiff Thornton took stenographic notes of the testimony offered by them in that action, and furnished the examiner and Duell longhand copies thereof. And he further found that Mr. Duell. had been instructed by his clients not to employ a stengrapher; that the only authority he had was conferred by his_ employment as attorney in the action; and that the-plaintiffs had no knowledge that such instructions had-been given to him; and that they relied upon his authority as such attorney to charge his clients by such employment.

_ The evidence, although sharply conflicting on the question of the employment of the plaintiffs, was sufficient to permit and support the facts so found by the referee.

The relation of an attorney to his client is that of agency-in respect to such matters as come within the conduct and. management of the action in which he is employed.

p. 803

The method of taking evidence with a view to completeness and accuracy, as well as expedition, is a matter for the judgment of the attorney, relating to the trial of actions, and to the preservation and presentation of the proofs for consideration.

The use of stenography for that purpose is neither unusual or unreasonable. And, ordinarily, the employment of the means to take the testimony in that manner and to furnish a long-hand copy of it thus taken would come within the scope of the authority of the attorney as such. And the liability for the service be that of the client. Judson v. Gray, 11 N. Y., 408 ; Bonynge v. Field, 81 id., 159, Bonynge v. Waterbury, 12 Hun, 534 ; Sheridan v Genet, id., 660 ; Covell v. Hart, 14 id., 252; Harry y. Hilton, 64 How. 199

The fact that the rules of the United States circuit court contemplate that the testimony in suits in equity cases will be taken by the examiner, and the depositions of the seve ral witnesses read over to and signed by them respectively, does not, we think, qualify the authority of the solicitor in his relation to his client in respect to the means employed to take the evidence, so long as it may be made available in the court for the purposes for which it is taken. The plaintiff Thornton was advised of the stipulation made by the counsel for the parties, and entered it in the minutes at the commencement of taking the proofs.

And it is likely that he then understood that Mr. Duell consented for his clients that it be taken by the stenographer, with the understanding that he should, without expense to them, be supplied with a copy of the testimony so taken. But the referee has found, and such finding has the support of the evidence, that after the defendants m that suit had put in their testimony the stenographer was discharged from further attendance by their counsel.

And that it was then and shortly thereafter that he was employed as before mentioned to take the proofs to be given on the part of the complainants. Such was the employment and the services performed pursuant to it, as found by the referee, which constitute the subject of this action. The plaintiff Thornton says he had no knowledge, and it does not appear that he did, before the trial of the order of reference, which directed the payment by the defendants in that action of the expenses of talcing the testimony. And it may not have defeated the plaintiffs’ recovery if he had. The plaintiff Thornton had the right to assume, unless in some manner advised to the contrary, that the attorney who employed him had the authority which his relation as such to his clients imported. And his right of action against them was not affected by any secret or confidential instructions given by them to him qualifying his authority.

p. 804

The conversation had in the presence of Thornton about presenting the question as to which of the parties should pay these charges to the court, his affidavit made with that view, and the correspondence on his part upon the subject of the claim, and in relation to the means of having it allowed, the referee, in view of the explanatory circumstances appearing in the evidence, was at liberty to conclude were not inconsistent with the claim made in this action by the plaintiffs.

There seems to be no serious dispute about the value of the services. And there is evidently no statutory rate of fees or charges prescribed applicable to the services in question.

The findings of the referee upon the conflicting evidence must be deemed conclusive. No other question seems to require consideration.

The judgment should be affirmed.

Haight and Lewis, JJ., concur.