399

notice of lien on a judgment which is exclusively for costs and disbursements is required, as the record itself is sufficient notice of such a lien. Wright v. Fleming, 10 Wkly. Dig. 450. Such judgment belongs to the attorney, and will not be set off. Gihon v. Fryatt, 2 Sandf. 638; Sweet v. Bartlett, 4 Sandf. 661. The above were decided at the general term of the superior court. In Marshall v. Meech, 51 N. Y. 143, Justice EARL, in his opinion, says: "It has long been settled that an attorney has a lien for his costs and compensation * * *To the amount of such lien upon the judgment recovered by him. the attorney is to be deemed an equitable assignee of the judgment. To the extent of the taxed costs entered in the judgment the judgment itself is legal notice of the lien, and this lien cannot be discharged by payment to any one but the attorney." The lien of the attorney attaches not only to a verdict or In Tunstall v. Winton, 31 judgment, but to a decision. See Code, § 66. Hun, 219, Justice DANIELS in his opinion says: "They were the costs of a successful appeal from an order, and, without any assignment to the defendShould, however, there be any quesant's attorney, legally belonged to him." tion on this point, the assignment made by the defendant of the costs herein to his attorney will prevent a set-off. In Garner v. Gladwin, 12 Wkly. Dig. 9, general term, supreme court, it was held that the plaintiff had a right to have the costs recovered by defendant set off against the damages recovered by plaintiff in the same action, unless it appears that the party defendant prior to the verdict-the time when such right attaches in favor of plaintiff— had assigned his claim which might accrue for costs to his attorney, and that such assignment before verdict would deprive the plaintiff of the right which he would otherwise have to set off the defendant's costs in the same action, and that costs of a motion cannot be set off against other motion costs after the latter have been assigned to the party. Wellman v. Frost, 38 Hun, 389. The fact that the signature to the assignment is neither acknowledged nor proven, is immaterial. It is set forth in and forms part of the appeal book, and which we are to consider on the appeal. It does not appear that any objection was raised to its admission, or that the question of its proper acknowledgment or proof of execution was raised before the justice on the hearing of the motion at the special term. In Smith v. Chenoweth, 12 Civ. Proc. R. 89, which was an appeal from the general term of the city court to the general term of the court of common pleas, the same question as in the case now before us was passed upon. The general term of this court held that such costs could not be offset; the common pleas reversed the ruling of this court, and held that the costs awarded the defendant may be set off against the judgment awarded in favor of the plaintiffs, notwithstanding the defendant's attorney has a lien upon such costs for his compensation. In the case last cited there was no assignment to the defendant's attorney of the costs sought to be offset, and consequently that question was not considered or passed upon by the common pleas. In Perry v. Chester, 53 N. Y. 240, which was a case in which the question of the right to offset a judgment obtained by plaintiff against the costs of the defendant's attorney was considered, Judge CHURCH, in his opinion, at p. 244, says: "Putting the case in the most favorable view for the defendant, the question here is whether a party having a judgment against another is entitled to set it off against a judgment for costs in a subsequent litigation commenced by such party against the rights of the attorney who obtained the latter judgment, which rights were secured by an express contract in writing, transferring such costs to him before any judgment was rendered. There is clearly no legal right for the reasons before stated, and I am unable to appreciate any superior equity. Such a contract is valid, and, if founded upon professional services to be rendered in the case, the consideration is ample and meritorious. If such a transfer was denied to a party he might be practically deprived of the right of interposing a defense. son sued has a right to secure his attorney with the prospective costs against

A per

his adversary, in consideration of the services to be rendered in earning such costs." See Rooney v. Railroad Co., 18 N. Y. 368; McGregor v. Comstock, 28 N. Y. 237. Order appealed from must be affirmed, with costs.

RICHMOND v. BREWSTER et al.

(City Court of New York, General Term. September, 1888.)

1. BAILMENT-SALE BY BAILEE FOR LIEN-Burden of Proof.

In an action for the value of a carriage sold to pay a storage lien, where plaintiff admits that defendants held it subject to a lien for storage, the lien will be presumed to continue until it is proved to have been paid.

2. SAME-LIABILITY OF BAILEE FOR PRICE.

Where the point in dispute is whether the price offered for the carriage was to be submitted to plaintiff before selling, it is error to charge that if the jury find that plaintiff was the owner of the carriage they must find the value of it for her; as defendants will be liable only for the price received, if they had unlimited authority to sell.

8. SAME-HUSBAND AND WIFE-OWNERSHIP OF PROPERTY-EVIDENCE.

Where it appears that plaintiff's husband bought the carriage, paying for it partly in cash and partly in his own notes, she is incompetent to testify that her husband, who was dead at the time of trial, was her agent in the purchase, and her statement, "It is mine, and I paid for it," is a conclusion only, and not evidence of ownership.

4. APPEAL-REVIEW-GENERAL TERM OF CITY COURT.

On appeal to the general term of the city court from an order denying a new trial errors may be reviewed, though not excepted to.

Appeal from trial term.

Action by Rosalind C. Richmond against J. B Brewster & Co. for the value of a carriage sold by defendants for storage charges. Judgment was entered on a verdict for plaintiff for $900, and defendants appeal.

Argued before NEHRBAS, McGown, and PITSHKE, JJ.

Wm. F. MacRae, for appellants. A. A. Redfield, for respondent.

PITSHKE, J. The complaint is framed on a breach of contract. The recovery was on a procedure as in tort, and not on the theory of the complaint. The chief contention on the trial and main point of the case was whether the sale of the carriage on storage with defendants was to be for a price to be first approved by the plaintiff, or whether defendants had an unlimited power to sell for the carriage-owner. It was actually sold for $500 by the defendants. The complaint admits that the carriage was held by defendants subject to a lien for storage charges. It was mutually understood between the parties that defendants were to sell this vehicle, the only reservation by plaintiff, at most, being in regard to the price. If properly sold under their authority, the defendants would be liable only for the price realized; if the sale was contrary to plaintiff's instructions, then defendants would be liable for the value of the carriage, no matter what it brought. Plainly, in either alternative, their amount of lien for storage charges and expenses of sale could be retained and claimed by defendants, because the sale, in either event, would be subject to that. The complaint, together with the law on "storage," showed the evidence of such a lien, and the ruling of the court shutting out the storageclaim against this carriage, duly excepted to, was error. The lien continued until proved to have been paid, on which the plaintiff had the burden of proof. If plaintiff got by the jury the full value of the chattel, the defendants are also entitled to get their unpaid storage charges and sale expenses by deduction from such verdict for plaintiff, whether for the price realized or the value that should have been realized.

The exception to the part of the charge that if plaintiff was found to be the owner of the carriage the jury should give her a verdict, and for the sum they thought the vehicle was worth, is also well taken. This was not so, if the

price offered need not be submitted to plaintiff before selling; and the defendants maintained there was no such requirement to first submit each offer to her. This denial of defendants the court (instead of the jury finding thereon) simply assumed to be untrue, and it did not in charging refer to this point at all. Yet this was the turning-point of the case.

But

These errors on essential matters would alone demand a reversal. there is a more serious objection at the very threshold of the case. One of the issues on the record is whether the carriage was the property of plaintiff; if not, she cannot recover its value on suing for a wrongful sale without authority. It appeared uncontradicted in the evidence that plaintiff's husband went to Brewsters' (defendants) and bought the carriage in 1878, and she never saw a bill from Brewsters of its purchase. Her husband made payment for it to the Brewsters, and he paid for it in cash and notes; that is, in his own notes. Clearly, this testimony showed the husband was the carriage purchaser, and the carriage apparently his property. Plaintiff, to overcome this, claims her husband was deputed by her as agent to make the purchase for her, in fact, and she gave her husband the money to buy it with, and that it was her money he passed to the Brewsters. But these assertions about her being the real party who furnished the purchase price to her husband, and that he was to act as her agent in buying, are not legal evidence. It concerns some personal transaction and communication between her and a decedent, and she thereby swore in her own behalf against the executrix of her husband, (deceased before the trial,) she endeavoring to thereby wrench the recovered "value" (apparently her husband's) from the estate of her husband and his creditors, to herself individually. Koehler v. Adler, 91 N. Y. 657, 658; Tooley v. Bacon, 70 N. Y. 37; Grey v. Grey, 47 N. Y. 552; Clarke v. Smith, 46 Barb. 30; Code Civil Proc. § 829. She was the executrix under her husband's will. Her statement, "It is mine, and I paid for it," is a conclusion, and is destroyed by the above testimony showing the actual details of the transaction. The exception to this matter was likewise well taken by defendants. Plaintiff could only testify as to occurrences and acts between herself and the Brewsters people, or other living persons, material to the controversy. She could not say directly or by implication that it was her money that passed from Mr. Richmond, her husband, to the defendants at the purchase of the carriage. She was not there. It will not be necessary to allude to the other exceptions on said trial.

On an appeal from an order denying a new trial the general term inspects the whole record and evidence, upon the law as well as the facts, and should correct every substantial error disclosed, showing that justice has not been done, although not excepted to. Wasilewski v. Wendell, 9 N. Y. St. Rep. 508. The general term has with respect thereto all the power of the trial term of the same court. Baylies, New Trials, 125; Hamilton v. Railroad Co., 53 N. Y. 27; Mandeville v. Marvin, 30 Hun, 288. Such is the rule where the verdict was rendered upon incompetent testimony admitted without exception, as also where the verdict is perverse, excessive, or contrary to the law or the evidence, but no exception was taken. Maier v. Homan, 4 Daly, 168; Oil Co. v. Insurance Co., 79 N. Y. 506. And in case the "charge" was erroneous, it is likewise reviewable without any exceptions. Lattimer v. Hill, 8 Hun, 172. For all such errors the general term has full authority to grant relief and direct a new trial. It is only in appeals from a court to another and different court that judgments can be reviewed and new trials granted solely for errors pointed out by exceptions taken at the proper time. 79 N. Y. 506, supra. For the errors committed on the trial, as above shown, the verdict rendered cannot be sustained, and the judgment and order appealed from should be reversed and a new trial granted, with costs to abide event.

v.2N.y.s.no.15-26

BLEWITT v. OLIN.

(City Court of New York, General Term. October 26, 1888.)

1. TRUSTS-TRUSTEES DE FACTO--PERSONAL LIABILITY.

In an action for work done it appeared that the premises on which the work was done were conveyed to defendant as trustee. Defendant had control of the property under an arrangement with the owner, and left the management of it to the owner's husband, who made the contract with plaintiff. Held, that though defendant was not a trustee under 1 Rev. St. p. 728, § 49, vesting the legal title in the beneficiary, he treated the deed as conveying the legal title to him, and was personally liable for the work done under the direction of his agent.

2. FRAUDS, STATUTE OF-AGREEMENTS RELATING TO SALE OF GOODS.

A contract to furnish materials and work on a house is not within the statute of frauds.1

Appeal from trial term.

Action by James Blewitt against Stephen H. Olin for work done and materials furnished. A verdict was directed for plaintiff, and defendant appealed.

Argued before NEHRBAS, MCGOWN, and PITSHKE, JJ.

G. L. Rives, for appellant. I. N. Miller, for respondent.

PITSHKE, J. The appellant claims the direction of a verdict for plaintiff against defendant individually was improper, as it appeared that no part of the work or material supplied to the Rutland flat, and herein sued for, was furnished at the express request of this defendant, but at the request of Sidney De Kay, whose wife, Minna De Kay, was the owner in fee of said apartment house. The defendant was proceeded against as an undisclosed principal of Sidney De Kay. On the trial the plaintiff elected to rest upon his original complaint, unamended, and accordingly he put in evidence only the deed to "Stephen H. Olin as trustee for Minna De Kay." This deed vested in her directly the whole legal and equitable title to the premises, by 1 Rev. St. p. 728, § 49; Wright v. Douglass, 7 N. Y. 564. And there was nothing in the case to show that the defendant had any title, legal or equitable, in the property, contrary or subsequent to this deed. The claim in question did not accrue by means of any prior special act or representation of the defendant to the plaintiff, leading plaintiff to believe this defendant would pay his bill, and is not to be supported that way. The party to a matter of contract, or the undisclosed principal on whose account it was entered into, can be held responsible thereon. One is liable as the promisor, the other as undisclosed principal; and neither is discharged till the creditor's claim is paid. Meeker v. Claghorn, 44 N. Y. 349; Butler v. Evening Mail, 61 N. Y. 634; Cobb v. Knapp, 71 N. Y. 348. It was in evidence that said work and materials were necessary for the maintenance of the flat, and the performance of the labor and furnishing of the material to the amount and value claimed were undisputed. In fact, the plaintiff's whole case was admitted, except that the orders were on behalf of the defendant, individualiter. The only question arising, therefore, is whether this defendant is liable as an undisclosed principal. The - scope of Sidney De Kay's authority was clearly established on the trial. As the evidence stood, it was plain the owner, Mrs. Minna De Kay, never interfered with the administration of the affairs of the property. The defendant, under an arrangement with such owner, had the sole control of the premises as general agent or manager thereof, and received and applied all the income of the same. He left the whole care and actual management of said Rutland flat to Mr. Sidney De Kay, however, as subsiduary agent in the defendant's behalf, expecting such subsiduary agent would pay all the expenses incurred out of

Respecting contracts within the statute of frauds as being agreements for the sale of chattels, as distinguished from contracts for work and labor, see Russell v. Railway Co., (Minn.) 39 N. W. Rep. 302, and note.

the accruing rents. This general employment of Sidney De Kay made the lat ter the agent of this defendant individually, and his acts, within such subagency, bind the individual Stephen H. Olin, (defendant herein,) as if done by the defendant himself, directly. It was a general authority (express or implied) unto Sidney De Kay to act for and in the name of the defendant. The immediate contracting parties are first liable if the principal was undisclosed, and then those next superior to them, for whom either acted, where the ultimate principal was not fully known at the making of the contract under consideration. The preponderating evidence was that the defendant, under said deed, took possession as a supposed trustee of the whole Rutland flat, and exercised acts of ownership and control in a manner as if he had the legal estate, and continuously did so until the mortgage on the property was foreclosed. He acted as a trustee de facto, though he was only general agent or manager with equal authority; and by reason of his intermeddling with and assuming entire management of the property in his sole possession he is to be held subject, as regards liability for his agent's acts, to the same rules and remedies as actual trustees are. Deming v. Puleston, 55 N. Y. 655. He treated the said deed as conveying the legal estate to him, and acted accordingly. When the proof of a fact is so preponderating that a verdict against it would be set aside by the court as contrary to the evidence, then it is the duty of the trial judge to direct a verdict. Dwight v. Insurance Co., 8 N. E. Rep. 654. There was nothing to submit to the jury, and the direction of a verdict for plaintiff was correct. An intermediary general agent is individually liable for the acts of his subagent, (by him selected,) which are properly done for him by such subagent, where no other principal was disclosed in the transaction. Ripley v Cochran, 10 Abb. Pr. (N. S.) 54; Pumpelly v. Phelps, 40 N. Y. 60.

The contract was evidently one to do certain work and supply the requisite material in so doing; and it was, hence, not within the statute of frauds, and the plaintiff is entitled to recover the full amount against the defendant, even were all furnished on oral orders. Courtright v. Stewart, 19 Barb. 455; Deal v. Maxwell, 51 N. Y. 652. These reasons require an affirmance of the judgment appealed from, with costs.

WALLACE et al. v. BLAKE et al.

(City Court of New York, General Term. September 29, 1888.)

1. SALE ACTION FOR PRICE-DEFENSES-DEFECTIVE QUALITY.

Defendants directed plaintiffs to make for them, at their mills in England, 500 pounds of yarn, described only as "No. 260," no stipulation as to quality being made. Upon its receipt defendants opened and paid for it, and sent the greater part to a customer, who attempted to manufacture it, but, claiming it to be unmerchantable, demanded a repayment of part of his money, which defendants made. Before the receipt of the goods defendants ordered 1,000 pounds more, but, before the goods were entirely manufactured, cabled plaintiffs not to ship until fur ther orders; but without further orders, after a delay of five weeks, plaintiffs shipped them, but defendants refused to receive or examine the goods, and they were reshipped. Held, that there was no evidence of a warranty, either express or implied, to be submitted to the jury, and that, not having returned the first shipment nor examined the second, they could not allege the inferiority of either.

2. SAME.

Plaintiffs, having fully performed their agreement to manufacture and ship the goods, and defendants having no legal ground for refusing to receive them, can recover the full contract price.

3. SAME-EVIDENCE-DEFECTS IN FORMER SHIPMENTS.

Proof of the inferiority of the first goods would be irrelevant as to the quality of the second shipment.