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WOODWARD, J. This action was to recover an amount deposited as a margin, in certain stock transactions, with the manager of one of the offices where the defendant carried on business as a broker. The answer is a general denial. The trial was before the court without a jury, and the defendant appeals from a judgment in favor of the plaintiff.
The trial court admitted, over the plaintiff's objection, certain testimony tending to show that neither the plaintiff nor the defendant's manager intended at any time to deliver or accept shares, but merely to pay differences according to the rise or the fall of the market. This testimony the court held insufficient to establish the illegality of the contract as a wagering agreement, and the conclusion is fairly sustained by the evidence. It is therefore unnecessary to pass upon the correctness of the court's ruling in admitting the evidence as competent under the general denial in the answer. See Goodwin v. Massachusetts Mut. Life Ins. Co., 73 N. Y. 480, 496.
We think Brown, the defendant's manager, was acting within the apparent scope of his authority as agent of the defendant in making this contract, and that the defendant is therefore bound by his act. He was more than a special agent of the defendant. He was a general agent for the transaction of the particular business in which he was engaged when he made this contract. “Where an agent is intrusted to do a particular kind of business, he becomes, as between the principal and parties dealing with him, the general agent for the transaction of that business; and his acts, as between his principal and strangers, in that particular line, will bind the principal, although he violates some private instructions given by his principal, not known to the public." Cox v. Albany Brewing Co., 56 Hun, 489, 491, 10 N. Y. Supp. 213, 214.
It is contended by the defendant that, inasmuch as this was a "discretionary order," the defendant is not bound by his agent's act. Upon this point, evidence was offered to show that the defendant did not authorize the making of the contract; that he was prohibited from taking this kind of order by the rules of the exchange of which he was a member, and therefore could not authorize an agent to do this class of business. The evidence was rejected. It seems to us that the rules are "private instructions," within the meaning of that term as used in the Cox Case, above cited. Surely they have not the force of general laws, which every man is presumed to know. Their only sanction is that of the body making them, and that organization can inflict penalties for their violation only on its members. It is not contended that a contract made in violation of the rules is in any sense tainted with illegality. The rules of stock exchanges do not differ essentially, in respect to their operation among persons who are not members, from the by-laws of business corporations. These are binding upon third persons only when those persons have knowledge of them. It does not appear that the plaintiff had knowledge of the rule in question, or that she even knew the defendant was a member of any exchange. To her the defendant was merely a broker, and Brown his manager and agent. The rule here invoked is one restricting the powers which would ordinarily belong to an agent of Brown's
and 118 New York State Reporter class; that is, the class of brokers' agents. The plaintiff was not bound by the rule. “By-laws of business corporations are, as to third persons, private regulations, binding as between the corporation and its members, or third persons having knowledge of them, but of no force as limitations per se as to third persons of an authority which, except for the by-law, would be construed as within the apparent scope of the agency." Rathbun v. Snow, 123 N. Y. 343, 349, 25 N. E. 379, 380, 10 L. R. A. 355, citing Morawetz on Corporations, 593. While, perhaps, the plaintiff must be presumed to have consented that the transaction be conducted according to the custom of brokers (Horton v. Morgan, 19 N. Y. 170, 75 Am. Dec. 311), yet evidence of that custom, which is in this case crystallized in the form of written rules, should be admitted only to show that a course of dealing between a broker and his client, regular in its inception, was or was not carried on in accordance with such custom. The doctrine of Horton v. Morgan, supra, does not permit a broker to retain a client's funds upon the plea that he received them irregularly, and to be sustained in this contention by proof of the rules of his exchange or the custom of his business. If he cannot use the rules as a shield for his own irregular acts, the acts of his agent, whom he has apparently given full authority for the purposes of his business, cannot be repudiated on the ground that they are forbidden by the rules. If the client is to be regarded as having consented, by employing a broker, that the custom of brokers shall govern the transaction, the consent presupposes that the broker has acted and will act within the rules; and the client is entitled to act upon the presumption that neither the broker nor his agents will enter into engagements contrary to the custom of the business or the rules of their exchanges. The testimony was properly rejected. But even conceding the ruling to have been error, still it satisfactorily appears from an examination of the whole case that the defendant was not prejudiced by the exclusion of the evidence, especially as the case was tried before the court without a jury. See Truman v. Lombard, 10 App. Div. 430, 434, 42 N. Y. Supp. 262.
The assignment of the claim in suit to the plaintiff appears to be in all respects properly acknowledged, authenticated, and proved. Laws 1896, p. 613, c. 547, § 261; i Rev. St. Ontario 1897, c. 175.
The other exceptions raise no point of reversible error, and the judgment should be affirmed.
Judgment of the Municipal Court affirmed, with costs. All concur.
(87 App. Div. 127.)
FREÉMAN V. BROOKLYN HEIGHTS R. CO. (Supreme Court, Appellate Division, Second Department. October 22, 1903.) railroad company are equal, irrespective of the direction from which
1. STREET RAILROADS-COLLISION-STREET CROSSINGS-NEGLIGENCE.
Where an avenue entering a street on which is a line of railway comprises a continuous line of traffic, with an avenue on the other side of the street, though their ends are not directly opposite, the location is a street crossing, at which the rights of the users of the streets and the
the intersection is approached. 2. SAME-QUESTIONS FOR JURY.
Where a street car approaches a street intersection at a greater speed than usual, and the motorman makes no attempt to stop it until within 25 feet of plaintiff's conveyance, too late to avoid the accident, though the car was 70 feet away when plaintiff started to turn across the track, the company's negligence is a question for the jury.
Jenks and Woodward, JJ., dissenting.
Appeal from Kings County Court.
Action by John A. Freeman against the Brooklyn Heights Railroad Company. From a judgment for defendant and an order denying plaintiff's motion for a new trial, he appeals. Reversed.
Argued before BARTLETT, JENKS, WOODWARD, HIRSCHBERG, and HOOKER, JJ. William F. Walsh, for appellant. Isaac R. Oeland, for respondent.
HOOKER, J. Plaintiff was being driven by another person easterly on Fulton street, in the borough of Brooklyn, upon the southerly. or east-bound track of the defendant's railroad. When a few feet west of the westerly intersection of Fulton street with Hudson avenue, the driver turned to take a diagonal course across from that point to the northeast corner of those two streets. At the time the wagon was turning upon its new course one of the defendant's cars was approaching from the east on the northerly track, as the plaintiff's witnesses say, at a speed much greater than is usual, and was at that time, according to their evidence, some eight or ten feet east of the easterly crosswalk at the junction of these two streets. Upon the westerly crosswalk, a distance of 46 feet from the easterly crosswalk, the rear wheel of the conveyance in which the plaintiff was riding was struck by this car. In an effort to save himself from hurt, the plaintiff jumped from the wagon towards the west an instant before it was struck by the car, but the collision threw the wagon upon him, and he was injured. At the end of the plaintiff's case the defendant rested without offering any evidence, and the court directed a verdict in its favor, from which direction, and from an order denying plaintiff's motion for a new trial, he appeals to this court.
We think this case should have been submitted to the jury. From the map which is in evidence we may fairly assume that Hudson and Flatbush avenues, in the borough of Brooklyn, comprise what has been termed a continuous line of traffic. It is true that their direction is not identical, but it is within a few degrees, and, although the opening of Hudson avenue into Fulton street is not directly opposite the head of Flatbush avenue, yet the most westerly point of the east line of Flatbush avenue is directly south of the most easterly point of the western curb of Hudson avenue, and, as to that rule of law which holds that street railroad companies and other users of streets have equal rights at their intersection, this location must be held to be such an intersection. The case is similar to Brozek v. Steinway Railway Co., 23 App. Div. 623, 48 N. Y. Supp. 345, where it was
and 118 New York State Reporter held that Honeywell street was a practical continuation of Blackwell street, and Bresky y. Third Avenue R. R. Co., 16 App. Div. 83, 45 N. Y. Supp. 108, where Roosevelt street, in the borough of Manhattan, and Baxter street, were held to be practically continuous. Under the doctrine of these cases the accident to this plaintiff occurred at a street crossing, and the law applicable to such a state of facts must control. The parties had equal rights, and each was bound to respect those of the other. It is established by the evidence that no effort was made to stop defendant's car, although it was going at a greater rate of speed than usual, until it had traversed one-half of the distance between the two crosswalks opposite the respective sidewalks of Hudson avenue. Although the car was 70 feet from the plaintiff at the time his wagon started to turn across the northerly track, the defendant's agents made no attempt to stop it until it had approached to within 25 feet of plaintiff's conveyance, too late to avoid the accident. These facts, having regard to the physical situation, presented the defendant's negligence as a question for the jury's determination, and to direct a verdict against the plaintiff was error.
But it is urged that the law applicable to intersecting streets has no bearing upon the rights of the parties in this case, inasmuch as the plaintiff had not come through Flatbush avenue at all, but was at all times in Fulton street, where the collision occurred. I cannot believe such reasoning to be sound. The plaintiff was within the general area of a street crossing, where the rights of users of that territory were equal, and it should not concern us in what manner he came into the place or from what direction he approached it. In his lawful use of the highway he found himself there, and it cannot, in my opinion, be held to be the law that on one day if he came into the place from Flatbush avenue he had more comprehensive rights and privileges than on a day following, should he enter by way of Fulton street. The boundaries of an intersection of streets enclose a spot peculiar to the law, in that no paramount rights are known there, and no limitation of this doctrine should be indulged against a class of individuals or vehicles that enter from any particular point.
A reference, again, to the map in evidence shows that had the plaintiff been proceeding in the usual manner northwesterly along the right side of Flatbush avenue, across Fulton street, and into the right side of Hudson avenue, his course would have been not widely different from that actually traveled by plaintiff from the point in the east-bound track of the defendant's road where, on the day of the accident, he turned northeasterly, and pointed for the northeastern curb of Hudson avenue and Fulton street. Had such been his course of travel, he would have crossed the west-bound track in Fulton street within about 10 feet from the point in that track where he did actually cross. This analysis of the directions and distances seems, of itself, quite sufficient to refute the argument that the law of intersecting streets is inapplicable to the facts of this case. But, if not, suppose that a stranger had been, on the day of the collision, traveling from Flatbush avenue into Hudson avenue along the route indicated above, and had been a few feet in advance of the plaintiff, they would both
have been proceeding in the same general direction, the latter crossing the west-bound track at a point about 10 feet west of that where the other crossed. And suppose, further, that defendant's motorman, approaching from the east, had seen both and the direction from which each came; if the position I take is fallacious, he might properly have said, “That stranger, although but a few feet from the plaintiff, both within the area of these intersecting streets, is entitled to the benefit of the rule allowing no one paramount rights in this place, for he came out of the intersecting street; but, as against the plaintiff, my car has the better right here, for he turned into this district from Fulton street." The point of ingress should not be held to affect the rights of those who have occasion to use such intersections of streets.
The judgment and order appealed from should be reversed, and a new trial granted.
Judgment and order reversed, and new trial ordered, costs to abide the event.
HIRSCHBERG, J., concurs. BARTLETT, J., concurs in result. WOODWARD and JENKS, JJ., dissent.
(87 App. Dir. 101.)
KANE et al. v. ROSE et al. (Supreme Court, Appellate Division, Second Department. October 22, 1903.)
An order made by the court, on a substitution of attorneys, requiring that the clients pay the former attorney a certain sum within a time fixed, but not providing for any punishment in the event of failure to make the payment, is not objectionable as intimating that on failure to
pay the clients would be punished as for contempt. 2 SAME-STATUTES--ATTORNEY'S LIEN.
Code Civ. Proc. $ 66, provides that the court, on a substitution of attorneys, may determine and enforce the attorney's lien. Held, that where clients proceeding have sought a substitution of attorneys, and the court has ordered a reference to determine the value of the services, and that such attorney have a lien for the amount due him, clients, having accepted the order of substitution, are bound by the directions
as to the lien. 3. SAME-DIRECTION OF PAYMENT OF COMPENSATION.
Code Civ. Proc. $ 66, provides that from the commencement of an action the attorney has a lien on the cause of action, etc., for his compensation, and that the court may determine and enforce the lien. Held, that on the making of an order of substitution the court has authority to impose a condition that clients pay the amount due the attorney of
record. 4. SAME-REFERENCE.
On a motion for a substitution of attorneys the court has authority to make a reference to determine the amount due the attorney as com
pensation. 5. SAME-FAILURE TO PAY COMPENSATION-STATUTES-CONTEMPT.
Code Civ. Proc. $ 779, provides that, where a sum of money is directed by an order to be paid, if it is not paid within the time limited an execution against the personalty of the one in default may be issued.
14. See Attorney and Client, vol. 5, Cent. Dig. $ 114.