Van Valkenburgh v. Van Doren

148 N.Y.S. 86 | N.Y. App. Term. | 1914

Bijur, J.

This action was brought by a public stenographer to recover from an attorney for services performed at his request.

Apparently the learned judge below was of opinion that the authorities cited to him justified the conclusion that services of this character were to be presumed to have been rendered for the attorney’s client. All that those cases hold, however, is that, upon the facts therein disclosed, it must be taken as matter of law that the stenographer, knowing who the attorney’s principal was, gave credit to the principal and not the attorney. See Bonynge v. Field, 81 N. Y. 159; Argus Co. v. Hotchkiss, 121 App. Div. 378; Title Guarantee & T. Co. v. Sage, 146 id. 578; Tyrrel v. Hammerstein, 33 Misc. Rep. 505.

In the case at bar the defendant offered to stipulate in open court that the services had been rendered and that they were worth the amount of the bill.

When plaintiff’s counsel undertook to prove the circumstances under which he had been engaged, defendant’s objection to the testimony as immaterial was sustained on the ground that the stipulation covered the proposed evidence. Plaintiff’s counsel was, therefore, prevented, over his objection and exception, from showing what the original contract between plaintiff and defendant was.

Two original bills sent by plaintiff to defendant were then put in evidence both dated April 8, 1913, and both charged to defendant personally. One for $95.75 was for services “ In re Iron Clad Manufacturing Co.,” the other for $72.85 was for services in various cases and for transcribing miscellaneous but designated correspondence. Subsequently, at defendant’s request, the charges “In re Iron Clad Manufacturing Company” together with some additional ones were by plaintiff incorporated into a new bill dated July 30, 1913, and charged to the American Steel Barrel Company, the amount being $148.20, and the second bill with some trifling exceptions was incorporated into a second bill of July 30, 1913, and charged to defendant personally to the amount of $70.75, on account of which on September thirteenth defendant paid $30. On March seventeenth (no doubt 1914) the balance was similarly paid. The purpose of making out the bill to the American Steel Barrel Company was explained by the plaintiff to be the presentation of that bill and the procuring of an order in the Bankruptcy Court directing its payment for reasons which are not very clear from the record. Thereafter plaintiff wrote a letter to defendant, December 1, 1913, in which plaintiff said, among other things: “ Can you not get Mrs. Seaman to pay the first bill, $128.40 ? * * * Will you also please send me your check for $40.75 still due on your bill.”

■ Upon these facts and others developed at the trial, plaintiff was entitled to go to the jury on the issue whether credit had been extended to defendant or to his known principal. Plaintiff was entitled to explain whatever admissions might be implied from his correspondence, and defendant to make clear to the jury why the bills were originally rendered to him, and how the plaintiff could have given credit to the American Steel Barrel Company for services charged to the defendant and described as “ In re Iron Clad Manufacturing Company.”

Inasmuch as plaintiff was deprived both of the opportunity of showing all the¡ circumstances of the original engagement, which is probably the determining factor in the case, and of having such evidence as he was permitted to introduce submitted to the jury for its determination, the judgment must be reversed and a new trial granted, with costs to appellant to abide the event.

Seabury and Page, JJ., concur.

Judgment reversed and new trial granted, with costs to appellant to abide event.