Irving v. Claggett

Brady, J.,

(dissenting.) The defendants were the heirs and next of kin of James H. Payne, who died in December, 1885. One John H. Wardwell commenced proceedings before the surrogate of this county to establish an alleged lost will by the terms of which the estate of James H. Payne was given to him. Theodore H. Swift was the attorney of record for the defendants in that proceeding. He was duly authorized by them to appear for them in the proceeding mentioned, and in any and all proceedings which might be brought against the estate of the deceased, and to do any and all things necessary to protect their interests therein. On the 8th day of October, 1886, he made an agreement with the plaintiff for his employment, and that of a number of detectives, for work to be done on the part of his clients, who were contestants before the surrogate, agreeing to pay them for their services $10 a day, and their expenses and disbursements,.and also, as an inducement to the plaintiff to give his personal time and attention to the case, agreeing to pay him $2,000 or $2,500 in case the defendants were successful. Pursuant to this contract the plaintiff employed a number of men, entered upon the performance of his duties, and was continuously engaged therein from the 9th day of October, 1886, to the 2d of February, 1887, both inclusive, and rendered services which were, substantially, continuous night and day during the period mentioned. He was personally present every day during the trial, and made his reports every day to the attorney and counselor for the defendants of what his men had done, and was in consultation with them everyday," and some times more than once a day; all of which work, it appears, was necessary for the protection of the defendants’ interests. It also appears that the work for each day was laid out under the immediate direction of the defendants’ attorney and counsel, and that the information collected was used on the trial before the surrogate; and it does not appear that any complaint was ever made as to the manner in which these services were performed, or that the expenses incurred and charged were improper. It also appeared that the defendants’ counsel expressed a wish that the case should be thoroughly investigated, the object being to frustrate what was conceived to be a fraudulent scheme on the part of Wardwell. The contestants were successful. It must be said, further, that there was no contest as to the fact that there was a contract made with the plaintiff, or that services were rendered under it; the real issue being as to the extent and value of the services, and as to the additional sum to be paid to the plaintiff in case of success. The referee found in favor of the plaintiff the balance due under the general employment on the terms mentioned, and that $2,500 additional was also due to him under the contract.

At the close of the plaintiffs’ case, however, the defendants’ counsel moved to dismiss the complaint upon three grounds: “First, that there was no evidence of the rendition of services in excess of the sum received by the plaintiff; second, that the plaintiff had failed to prove that what was done by him under his employment by Swift was within the scope of the power conferred upon the latter; third, that the testimony proved the agreement to have been made, and that the credit was given by the plaintiff to the administrators, and the action should therefore have been brought against them. There was no defense set up in the answer suggesting this last proposition. Independently of which, the testimony clearly shows that the agreement was made with Swift, who was the agent and attorney of the defendants, and in reference to *139whom, it appeared that he would not have taken the case without such authority from the heirs. With regard to the second proposition, it is only necessary to say that it already appears that the heirs conferred upon Swift the power to do what he deemed necessary for the protection of their interests; and what was done, therefore, by him, was done with that end in view. In this result the plaintiff’s claim is sustained by the testimony of Titus, who, it appears, was subsequently employed, in the defendants’ interest, to oversee that the detective work was done, and who was in constant communication and consultation with Mr. Swift. In relation to the first proposition, it must be said that it concedes the employment of the plaintiff to have been a proper one, under due authority; for the reason that it disavows only the rendition of services in excess of the amount paid, and which was clearly paid under the contract made with the plaintiff.

The serious contention, however, springs out of the peculiar character of the evidence by which the services were proved. The plaintiff produced his book of account. It was one kept by him in the ordinary course of his business, the entries in which were made in his own handwriting. It was made up in the following way: Every morning, each of the detectives who had been engaged the day or the night before reported what work he had done on what were called “slips.” These were were sent to Mr. Swift, the attorney. The plaintiff entered these results, also, and upon his day-book the name of each man, the amount of the expenses paid him, and the amount of his salary; and from this day-book and the slips the account-book produced was made up. It was a book of original entry, except the dates and the amount of expenses. The day-book was lost, and from the evidence it seems to have been carried away and sold, with the waste paper of the plaintiff’s office. The plaintiff testifies that the entries were correctly made from the slips given to him, and were made at or near the date of the slips; and it seems that at the time of the receipt of the slips he was well advised of their accuracy, from his knowledge of the services to which they related. He said that he was out every day from morning until night; that he was all over, at all times, overseeing his men; that he saw them everyday,—three or four times a day,—so that he had a personal knowledge as to the rendition of the services by the persons whom he employed; and this evidence was supplemented by that of Titus, who, we have seen, was1 specially employed to oversee the detective work. He approved of the reports of the men, having, if not ample, certainly sufficient, knowledge upon the subject to state that their work was done. In addition to which, it must be kept in view that the result of these reports was communicated daily to the defendants’ attorney, Swift, and whatever was considered valuable used to protect the defendants’ interests. But the objection still exists that none of the detectives whose work is indicated by the slips appeared as witnesses, and that in that respect the testimony upon which the plaintiff’s case rests differs from some of the adjudicated cases. But this difference is supplied sufficiently, it is thought, within the doctrine of McGoldrick v. Traphagen, 88 N. Y. 334; and Mayor, etc., of New York v. Railroad Co., 102 N. Y. 572, 7 N. E. Rep. 905, by the 'statement of the plaintiff of his own work, and of Mr. Titus of his work, and their supervision of the men engaged, and, indeed, of one of defendants’ witnesses, Mr. Wandell, that the men were engaged in doing the work which was contemplated by the agreement between the plaintiff and Swift, acting on behalf of the defendants. The evidence herein showed, thus, the engagement of the men, a report by them of each day’s work to the plaintiff, his own personal inspection of them while at work, "and that of Mr. Titus, and the record of the slips stated, with their results. This proof is regarded as stronger than that which was held to be sufficient in the case of McGoldrick v. Traphagen, supra, and as decidedly within the principle stated in Mayor, etc., of New York v. Railroad Co., supra, in which, where an account had been kept, in the ordi*140nary course of business, of laborers employed in the prosecution of the work, based upon daily reports of the foremen having charge of the men, who, in accordance with their duty, reported to another subordinate of a higher grade, under the same common master, and he also, in the course of his duty, entered the time as reported, and the foreman testified that they made true reports, and the persons who made the entries that he correctly entered them, it was held that entries so made are admissible as evidence to show the amount of work done.

None of the other exceptions call for any particular comment. It is sufficient to say that they are of no significance, and are unavailing.

This leaves for consideration only the further question as to the propriety of awarding to the plaintiff the extra compensation of $2,500 which was given by the referee, and which, as to amount, is abundantly sustained. The estate was large, and the amount in jeopardy was considerable; and more than ordinary devotion was excited by the voluntary promise that if the attempt to establish the alleged lost will was defeated an extra compensation would be given. This seems to have stimulated the plaintiff to extra exertion; for, according to his evidence, which was not successfully gainsaid, he labored in the cause night and day, and was at all times at his post when required, and no complaint was made against him or his methods by any person representing the defendants’ interests. It may be said, in conclusion, that no doubt can be entertained of the value and efficiency of his services, and that the claim, therefore, seems to be in all respects meritorious. For these reasons the judgment should be affirmed, with costs.