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and 118 New York State Reporter (87 App. Div. 81.)

ROGERS V. POLYTECHNIC INSTITUTE OF BROOKLYN. (Supreme Court, Appellate Division, Second Department. October 16, 1903.) 1. ATTORNEY AND CLIENT-EMPLOYMENT-CONTRACT FOR SERVICES-CONSIDERA

TION.

Where an attorney brought a claim due by a city to defendant to the latter's attention, prepared and filed an affidavit as the basis of its assertion, adjusted the amount with the city officials, and thereby rendered services of some value, facilitating and expediting the collection of the claim, defendant's contract to pay plaintiff one-half of the amount collected for his services was not void for want of consideration by reason of the fact that the money would ultimately have been paid by the city voluntarily. Appeal from Municipal Court of New York.

Action by John J. A. Rogers against the Polytechnic Institute of Brooklyn. From a Municipal Court judgment in favor of plaintiff, defendant appeals. Affirmed.

Argued before JENKS, WOODWARD, HIRSCHBERG, and HOOKER, JJ.

R. Percy Chittenden, for appellant.
Fred L. Gross, for respondent.

HIRSCHBERG, J. The plaintiff is an attorney at law, and was employed by the defendant to collect from the city of New York certain overpaid water rates, in consideration of which he was to receive one-half of the sum collected. The contract is in writing, signed by the president of the defendant on its behalf. It was prepared by the defendant, and the essential part is as follows:

"You are hereby authorized to collect the sum you referred to as due the Polytechnic Institute from the city for upwards of two years (overpaid to the city in the past); it being understood and agreed that the Institute is to be liable to no expense or trouble in the matter, in consideration of which circumstances, and of your services, we agree to pay you one-half the amount you shall collect on the claim referred to."

The amount collected by the plaintiff and paid to the defendant was $230, but the defendant insists that the plaintiff's services were wholly unnecessary, inasmuch as the city authorities intended to refund the money in any event, and would have done so without the intervention of a lawyer. The defendant's president testified that, before he signed the contract, he had a conversation with the plaintiff by telephone, as follows:

"He then told me it was a claim against the city for a refund of water taxes to which we were entitled, and I think he mentioned the period covered and specifically the amount. Then I asked him if that was recovery from the city which we could not obtain without his services. I said: 'If this is a claim which will come back to us without your intervention, we ought not to pay you for it,' and he said that it was a matter which he had learned in the course of his investigation, and that he had other clients with similar claims--a number of clients with similar claims.' I said on that understanding I would sign and forward the agreement, which is embodied to that extent in the letter signed by me."

It appeared that the plaintiff did have other clients with similar claims, and that he had investigated and ascertained the amounts due them. He denied that his employment by the defendant was based on any assurance by him that the rebate could not be collected without his intervention, nor was it distinctly testified to on behalf of the defendant that he did give any such assurance. The finding of the court below in favor of the plaintiff upon the facts is not one which should be disturbed as contrary to the evidence or the weight of evidence, and no exception was taken by the defendant upon the trial.

It is not claimed that the contract is unconscionable, or that it was procured by fraudulent representations. The appellant's claim is that, if the money would have been refunded in any event, the contract is roid for want of consideration. The plaintiff concededly brought the claim to the defendant's attention, prepared and filed an affidavit as to the basis of its assertion, adjusted the amount with the city officials, and in that manner rendered services of some value in facilitating and expediting the collection; even assuming that the amount would have been paid to the defendant some day without the presentation of a claim. The only defense set up is a general denial. A good consideration is expressed in the contract, and it is very doubtful whether a partial failure of consideration can be established under the general issue. Eldridge v. Mather, 2 N. Y. 157; Dubois v. Hermance, 56 N. Y. 673. See, also, Runyan v. Nichols, 11 Johns. 547; Rittenhouse v. Creveling (Sup.) 14 N. Y. Supp. 85; Sprague v. Sprague, 80 Hun, 285, 30 N. Y. Supp. 162; Springer v. Dwyer, 50 N. Y. 19; Milbank v. Jones, 127 N. Y. 370, 28 N. E. 31, 24 Am. St. Rep. 454.

The judgment should be affirmed.
Judgment of the Municipal Court affirmed, with costs. All concur.

(87 App. Div. 78.)

TAYLOR v. SMITH, (Supreme Court, Appellate Division, Second Department. October 16, 1903.) 1. CARRIERS-PUBLIC CARTMEN-LIEN FOR CHARGES.

Where a public cartman, who was engaged in loading cars with goods for plaintiff, agreed to load a trap which had been driven to the car by plaintiff, he could have no lien on the trap because of the lack of any

services rendered as a carrier with respect thereto. 2. SAME-EXPRESSMEN'S LIEN-ENFORCEMENT-POSSESSION.

A public cartman seeking a lien on property under the ordinances of New York City must convey it to the property clerk of the police department, or to a convenient storage warehouse, and not keep it in his own

possession. Appeal from Municipal Court of New York.

Action by Mary E. Taylor against William Smith. From a judgment dismissing the complaint, plaintiff appeals. Reversed.

Argued before GOODRICH, P. J., and BARTLETT, JENKS, HIRSCHBERG, and HOOKER, JJ.

Henry Morris Haviland, for appellant.
Clinton B. Smith, for respondent.

HIRSCHBERG, J. The action is to recover the value of a trap belonging to the plaintiff, which the defendant is charged with conand 118 New York State Reporter verting. The answer admits the possession and detention of the vehicle by the defendant, but alleges that it was delivered to him with other goods to be carried to a railroad and there loaded and shipped, and that the detention is to secure his charges for such services. It is not clear from the evidence what was the scope of the contract between the parties. The arrangement was made by the plaintiff's husband on her behalf, and he was not examined as a witness. The defendant testified upon the subject as follows:

“The agreement was to load his furniture and household effects and what goods came from Westbury on freight cars for a nominal sum, which was afterwards agreed upon as forty dollars. When we had completed-nearly completed-our contract, Mr. Taylor says to me, 'I will pay you when this furniture reaches Osca wana.' I said, 'I guess not.' I says, 'What have I to do with Oscawana? You are a stranger to me, when I am through loading these cars I want my money.' He said, 'I won't pay you.' I said, 'All right.' I finished loading as the agreement was, with the exception of the carriage. I went to the police station, being a licensed express, and stated my case. 'Well,' he says, 'you know as a licensed express, what to do.' (Objected to. Sustained. Last clause out.) Q. You refused to put them on the car because the amount agreed upon wasn't paid? A. He was a stranger to me. I didn't know him. I held the carriage, and informed the bureau of licenses at Long Island City what I had done, and this man refused to pay me the forty dollars, and I held that carriage until such time as he paid me."

It appears that the plaintiff had chartered two cars at College Point, where she resided, and that the defendant was employed to load her furniture on the cars for transportation to Oscawana. The furniture was loaded by him on the cars, but whether he, as an expressman, brought it to the cars, does not appear. It does clearly appear, however, that he did not take the trap in question to the cars, or perform any services as a carrier in respect to it. The trap was driven to the cars by the plaintiff's brother, and was left there, unloaded, at the defendant's request, he saying that he would take charge of it and put it on the cars. This was because at that time the defendant was engaged in loading the other articles upon the cars, and the plaintiff's brother could not get the trap near enough to the cars to load it himself. The plaintiff testified that the defendant told her, "The trap might stand in the yard outside of the car that night, because he didn't think they could put it in,” to which she replied, quoting her language, “I said it was too nice a trap to stand outside, and it mustn't; and he said, 'I will take it down to my place and keep it through the night.'”

The defendant could have no lien excepting for services rendered as a carrier, and in that case he could have a lien only upon the articles with respect to which such services were rendered. If his contract was confined solely to loading the cars, it is doubtful if he could have a lien at all. But it is evident that, as to the trap, he agreed to do nothing but to place it on the cars either the day it was brought there or the next morning; and the case, therefore, is quite similar to that of Booker v. Reilly (decided by this court in June last), 82 N. Y. Supp. 1008, so far as regards the right to a lien. His possession of the trap may be regarded, perhaps, as lawful, until demand was made for its return to the plaintiff, but his refusal to comply with such demand un

der the circumstances disclosed by the evidence rendered him liable as for a conversion.

It may be further noted that if the defendant sought to obtain a lien upon the property as a public cartman, under the ordinances of the city of New York, he should have conveyed it either to the property clerk of the police department, or to a convenient storage warehouse, and should not have kept it in his own possession. Browning v. Belford, 83 App. Div. 144, 82 N. Y. Supp. 489.

The judgment should be reversed.

Judgment of the Municipal Court reversed, and new trial ordered; costs to abide the event. All concur.

(86 App. Div. 559.)

In re FERRIS. (Supreme Court, Appellate Division, Second Department. July 24, 1903.) 1. INCOMPETENT PERSON-ACCOUNTING BY COMMITTEE-DEATH OF INCOMPETENT

- JURISDICTION OF SUPREME COURT.

Code Civ. Proc. & 2344, providing that on the death of an incompetent person, for whom a committee has been appointed, his property must be administered "as if a committee had not been appointed," does not deprive the Supreme Court of jurisdiction to determine the necessary disbursements of the committee, and his costs and counsel fees, as re

quired by section 2336. 2. SAME-PARTIES–EXECUTOR.

Where, pending proceedings in the Supreme Court for the determination of the amount which shall be paid to the committee of an incompetent person for necessary disbursements, costs, and counsel fees, the incompetent dies, and an executor of his estate is appointed by the Surrogate's Court, the executor must be made a party to the proceedings.

Appeal from Special Term.

In the matter of the estate of Anna W. Ferris, an incompetent. Motion for the bringing in of the executor of the incompetent in the proceedings to determine the committee's disbursements, costs, and counsel fees. Granted.

See 77 N. Y. Supp. 309.

The following opinion of Garretson, J., was delivered on the granting of the motion at Special Term:

During the lifetime of the incompetent, this court, then having exclusive jurisdiction of her person and estate, had under consideration the determination of the amount which should be paid to the petitioner out of the funds in the hands of the committee of the estate for the necessary disbursements of the petitioner, and for his costs and counsel fees, as provided by section 2336 of the Code of Civil Procedure. Incidentally thereto, and for its better information, the court had appointed a referee to take proof in respect to the same, and report with his opinion thereon. Pending the execution of the reference, the incompetent died. Her will has been proved in the Surrogate's Court, and letters testamentary issued to the executor named therein. Upon the theory that the proceeding has abated by her death, the petitioner asks that the executor be brought in and made a party thereto, and that it be directed that the reference be carried on to a conclusion.

Objection is made by the executor to the jurisdiction of the court to grant the motion, on the ground that, by section 2344 of the Code of Civil Procedure, the power of the committee has ceased, "and the property of the decedent

and 118 New York State Reporter must be administered and disposed of as if a committee had not been appointed.” I am of the opinion that this is not a sufficient answer to the application. The funds are still in the custody of the court, at the hands of its bailiff, the committee, who is required to account in respect thereto, and thereupon to pay the same over to the executor upon the order of the court. In re Butler, 8 Civ. Proc. R. 56; In re Grout, 83 Hun, 25, 31 N. Y. Supp. 602. As the duty of the court to fix the disbursements, costs, and counsel fees of the petitioner as required by section 2336 has not been performed, it may yet perform that duty, and should do so, notwithstanding the death of the incompetent, for those expenses remain a charge upon the estate. They are not ordinary debts against the estate of the decedent, and the petitioner is not required to present them to the executor to be adjusted and paid in due course of administration. In re Lofthouse, 3 App. Div. 139, 38 N. Y. Supp. 39; In re Clapp, 20 How. Prac. 385.

The executor should be brought into the matter, the reference be proceeded with, and the referee's report made, to the end that the amount of these expenses may be fixed and allowed by the court at an early day. Meanwhile there should be deposited by the committee, in a trust company, to the credit of this proceeding, fifteen thousand dollars of the moneys in the committee's hands, to be held subject to the further order of the court. Upon compliance therewith, the committee may account for the purpose of being discharged. This direction is not to be regarded as even an intimation of the amounts which should be awarded to the petitioner, as to which I can express no opinion for want of sufficient knowledge of the subject.

Let an order be prepared accordingly, and submitted for settlement on two days' notice.

Argued before GOODRICH, P. J., and BARTLETT, JENKS, WOODWARD, HIRSCHBERG, and HOOKER, JJ.

George S. Ingraham, for committee.
Fletcher, McCutchen & Brown, for appellant executor.
Irving Washl»urn (Milton A. Fowler, of counsel), for respondent.

PER CURIAM. Order affirmed, with $10 costs and disbursements, on the opinion of Garretson, J., at Special Term.

PEOPLE ex rel. SMITH v. WEEKES, Town Clerk. (Supreme Court, Appellate Division, Second Department. September 28, 1903.)

Proceeding by the people of the state of New York, on the relation of Charles Smith, against H. Luther Weekes, town clerk of the town of Hempstead.

Argued before GOODRICH, P. J., and BARTLETT, JENKS, WOODWARD, HIRSCHBERG, and HOOKER, JJ.

PER CURIAM. Order affirmed, on authority of In re Seaman, 175 N. Y. 506, 67 N. E. 1090, without costs.

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