102 N.Y.S. 1093 | N.Y. App. Div. | 1907
Lead Opinion
The action, as limited on the tidal, was brought to recover the value of services rendered by the plaintiff, as consulting engineer, to the defendant during the period commencing in the month of October., 1901, and ending in the month of November, 1902. On the 25th day of April, 1895, plaintiff was appointed consulting engineer of the defendant by a resolution duly adopted by its board of directors, which, with respect to the compensation to be paid, provided as follows: “ At such compensation as the board may hereafter determine upon.” This appointment was never revoked, but no salary was thereafter prescribed for the position. Mr. Hiven was president of the company from the 25th day of April, 1895, until the 11th day of April, 1904. The plaintiff had been a director of the company since the 12th day of December, 1889, and held twenty-five shares of stock of the p>ar value of $100 each, and he was elected secretary of the company in January,. 1896. After his appointment as consulting engineer, and prior to the sixteenth day of December the same year, the plaintiff, at the request of the president of the defendant, performed services consisting of engineering advice and making plans and estimates for the route of the railroad which the defendant contemplated constructing under the East river, across Manhattan Island and under the Hudson river to the State line ; and on that day he presented to the board of directors of the defendant a bill for $2,000 for such services, which was approved and paid. On the 1st day of Hovember, 1895, the board
At' the close of the plaintiff’s case the defendant moved for a nonsuit, a nd upon the denial of the motion rested without offering any evidence either oh the question of the employment of the plaintiff or the value of his services. Inasmuch as his testimony as to the value of his services might have been controverted, the jury were justified in accepting it, and the only question we are called upon to review is whether the defendant is liable. It is evident from the failure of the board of directors to meet, that the management of the business was left to the president, whose powers and duties, so far as material to the appeal, were defined by section 1 of article 8 of the by-laws, as follows: “The president shall be the chief executive officer and head of the company in . all its operations, arid shall supervise all other officers and all departments of the road in every respect.” It is manifest that the services rendered by the plaintiff were essential to the development of the company. I am of opinion that it was fairly within the authority of the president to direct the plaintiff to perform those services. It is to be borne in mind that it was not essential that the president be clothed with- authority to employ the plaintiff, for' that had been previously done by the board of directors. It was merely essential that the services fell witliin'the line of services to be performed by the consulting engineer and that they were in good faith directed to be performed by the president.' It cannot bo successfully maintained that by virtue of his relation as director and secretary of the company, the plaintiff was not entitled to charge for his services. (Bagley v. Carthage, W. & S. H. R. R. Co., 165 N. Y. 181.) He was under no duty as secretary or director' of the company to perform these services. The company by paying a bill for similar services, admitted that it was under obligation to • pay the plaintiff for any like services thereafter rendered by authority. Moreover, 1 am óf opinión that the. affidavit of the president of the company, used by the defendant on a motion for a bill of particulars, and filed in this action, is evidence against the company that these services were rendered for the company, for it contains- an admission that they were rendered “for the defendant,’ and having been used by
It follows that the judgment and order should be affirmed, with costs.
Patterson, P. J., Clarke and Scott, JJ., concurred; Ingraham, J., dissented.
Dissenting Opinion
I dissent. When the plaintiff was appointed consulting engineer the resolution of the board of directors provided that it should he “ at such compensation as the board may hereafter determine upon,” and he accepted that appointment upon such terms. 1 think he impliedly agreed that the compensation for the services to be rendered under such appointment was to be determined by the board of directors, and that, he was not entitled to recover from the defendant compensation for his services based upon a quantum meruit. Assuming that the president had the power to direct him to perform services for the company, such direction was not an employment of the plaintiff, but simply regulated the work that he was to perform as an officer or employee of the company under the appointment which he had accepted. He accepted the appointment without the salary being fixed, agreeing that it should be subsequently fixed by the directors, and not the president. As an employee of the company he performed services for the company, but the services that he performed were under his appointment by the board of directors, and his agreement with the company was that he should be paid such compensation as the board should fix. As he has never requested the board to act, and as the board has never fixed the compensation, I do not think he was entitled to recover. The action of the board in directing that he be paid for the services that he performed prior to the services in question was an act of the board under the power that it had reserved to itself to fix the plaintiff’s compensation. It certainly was not an admission that he was entitled to recover the value of the services that he rendered in the future, without action by the board of directors.
Judgment and order affirmed, with costs. Order filed.