his professional studies? It is not asking too much of the man who assumes that he is competent to build a house at a cost of more than $100,000, and to arrange that it shall be heated by steam, to insist that he shall know how to proportion his chimney to the boiler. It is not enough for him to say, "I asked the steam-fitter," and then throw the consequences of any error that may be made upon the employer who engages him, relying upon his skill. Responsibility cannot be shifted in that way. In the case of Moneypenny v. Hartland, (twice reported, once in 1 Car. & P. 352, and then in 2 Car. & P. 378,) it was held that if a surveyor be employed to erect a bridge and form the approaches to it, he is bound to ascertain for himself, by experiments, the nature of the soil, even although a person previously employed for that purpose by his employer has made such experiments, and has given him the result at his employer's request; and if the surveyor makes a low estimate, and thereby induces persons to subscribe for the execution of the work who would otherwise have declined it, and it turns out that, owing to his negligence and want of skill, such estimate is grossly incorrect, and that the work can be done, but at a much greater expense, he is not entitled to recover for his services.

I am of opinion that the defendant should be allowed to deduct from the plaintiffs' demand against him the cost of correcting the defects in the chimney, $1,000. I have read the appeal-book through with care, but I find nothing that warrants us in allowing a greater reduction from the judgment. I do not mean to say that the defendant has no other causes of complaint, but merely that the testimony is such that we cannot hold that the referee was not justified in deciding those matters in the plaintiffs' favor. Westerlo v. De Witt, 36 N. Y. 340. The judgment should be reversed, and a new trial ordered, with costs to abide the event, unless the plaintiffs consent that the judgment be modified by deducting therefrom $1,000; in which event the judgment will be affirmed, as modified, without costs of appeal.

(Common Pleas of New York City and County, General Term. December 8, 1888.) 1. JUDGMENT-EFFECT-RES ADJUDICATA.

In an action on a note given by defendant to W., and transferred to plaintiff, plaintiff offered in evidence the record of a judgment in an action by defendant against W., the complaint in which alleged that the note was given to W., to be discounted for defendant's benefit, and that W. converted the proceeds to his own use. This the answer denied, and alleged that the note was given to W. in payment of a partnership debt. W. also denied that he had discounted the note. The jury found in favor of W. Held, that defendant in this action was barred by that judgment from setting up in defense that the note was given to be discounted. 2. ASSIGNMENT-ACTION BY ASSIGNEE-AMOUNT OF RECOVERY.

In the absence of fraud, an assignee for value of a note may recover from the maker the face of the note, with interest, though he bought the note after maturity, for less than its face value.

Appeal from city court, general term.

Action by Casilaer F. Hartnett against Samuel B. Adler upon a promissory note. Defendant appeals. For statement of facts, see 1 N. Y. Supp. 321. Jacob F. Miller, for appellant. Evarts, Choate & Beaman, for respondent.

LARREMORE, C. J. Statements of the facts involved on this appeal precede both of the opinions rendered by the general term of the city court. It is therefore unnecessary to restate such facts. It also seems to us best to take up the discussion of the main question, without preliminaries, where the city court left it.

'Affirming 1 N. Y. Supp. 321.

In the first place, then, it may be said that we concur in the conclusion, expressed in one of the opinions, that the case of Insurance Co. v. Bishop, 1 Daly, 449, was a controlling authority upon the decision in the city court. The cited case was a suit for rent. The defense was that in a prior summary proceeding between the same parties to recover possession of the premises the jury had found in favor of the defendant. In such proceeding two defenses had been raised, viz: (1) Whether the rent was due; (2) whether there had been a proper demand. It is to be noticed that a finding favorable to defendant on either one of these issues would have been sufficient to entitle him to the verdict he received. Defendant was not required to have both questions determined in his favor, in order to obtain a dismissal of dispossess proceedings. But, as both questions had been raised and submitted, and the result had been a general finding for defendant, it was held that it would be presumed that both questions had been passed upon, and that the verdict was presumably res adjudicata as to either of the questions subsequently arising, and therefore a bar to the claim for rent. We approve of the principle laid down in that case, and think it is in accordance with sound sense. In fact, we do not see how any other presumption could be entertained under such circumstances; and the opportunity will always exist to overcome mere presumption by positive testimony, when the same can be given. In the prior action in the superior court between the present plaintiff's assignor and the present defendant there were raised two questions. The first was whether the note here in suit had been delivered by defendant to said assignor, simply that the latter should procure its discount for defendant's benefit; and the second was whether said note had been given to said assignor by defendant in payment of a bona fide debt. The general verdict in favor of plaintiff's as signor in the superior court action was therefore presumptively an adjudication against the present defendant on both questions. Furthermore, counsel for plaintiff in the case at bar have not relied on a mere presumption. They have offered in evidence the judgment roll in the superior court action, which affords affirmative proof that the precise question here involved was actually submitted to and passed upon by the jury. The following is an extract from Judge TRUAX's charge upon the trial of such prior action. The person designated as plaintiff by Judge TRUAX is the defendant Adler in this action, and the person designated by him as defendant is plaintiff's assignor, the payee of the note in suit: "The defendant denies that the plaintiff gave him the notes to be discounted; the defendant denies that he discounted the notes; and he alleges that the notes were given by the plaintiff to him in payment of a debt that the plaintiff then owed to him on a matter that related to a partnership that had theretofore existed between the plaintiff and defendant. Those allegations and denials make the issue for you to try, and the only issue." We find nothing either in the authorities cited or in the arguments advanced on behalf of appellant which leads to a different conclusion from that reached by the city court. The recent tendency has been towards a widening of the scope of the doctrine of res adjudicata, so that the principle seems now reasonably well established, that when a question of fact has been once fairly litigated on its merits, the decision thereon shall be final as between the same parties and their privies, no matter how different may be the technical form of the action or proceeding in which such question subsequently arises. It is the duty of a court, in determining whether the principle of res adjudicata applies, to examine the record in the former suit, not for the purpose of spelling out some artificial theory on which the result may possibly have been reached, without passing upon the question now raised, but for the sake of ascertaining whether, according to the ordinary processes of thought and significance of language, the court or jury must be presumed to have considered such question. We are of opinion that no fair-minded man could inspect the record in the superior court case without being convinced that

both parties thereto intended to litigate the question of the ownership of plaintiff's assignor, in his own right, of the note here sued upon, and also that the court and jury considered the verdict given an adjudication of such question. We are further of opinion that the verdict was properly directed for the whole face of such note, with interest, and that plaintiff is not to be limited in his recovery to the actual amount paid by him to his assignor on the purchase of the same. Plaintiff acquired the note after maturity, and he sues here not as an indorsee of commercial paper, but simply as assignee of a chose in action. His title as such would be good, even if the assignment to him expressed but a nominal consideration. It appears that he has paid a valuable consideration for the note, though the same is much less than the face thereof. The remarks of DANFORTHI, J., in Nickerson v. Ruger, 76 N. Y. 284, have no application to the case at bar. That was an instance of alleged fraudulent diversion of a note, and Judge DANFORTH's remarks were made upon the express assumption that the fraud might exist, and be shown; and, in that event, he said that "only to the extent that the plaintiff has paid value for the note can he recover, and not for that, even, if he is chargeable with notice of the diversion of the note." Into the case at bar the element of fraudulent diversion cannot enter, because all equitable defenses were raised and disposed of in the superior court action, and it was therein decided that the note was given to plaintiff's assignor in payment of a bona fide debt owed him by defendant. Said assignor, being thus the lawful owner and holder of said note, had the option of collecting it himself, or of transferring it, as had been done; and his right to sue upon and enforce the payment thereof passed as an incident of ownership to his assignee. The judgments and order appealed from should be affirmed, with costs.

(Common Pleas of New York City and County, General Term. December 3, 1888.) FACTORS AND BROKERS-ACTIONS AGAINST PLEADING.

A complaint, in an action against a stock-broker for failure to execute orders for the purchase and sale of stock, containing no allegation that plaintiff provided the means of payment, or that defendant agreed to advance the same, or that plaintiff placed the stock to be sold within defendant's reach, or that he agreed to sell stocks that plaintiff did not possess or furnish for delivery, does not show a cause of action.

Appeal from special term; BOOKSTAVER, Judge.

The complaint in this action by Iris C. Ryder against W. H. M. Sistare and others alleged that defendants were copartners doing business as stock-brokers, and plaintiff entered into an agreement with them by which they promised, in consideration of a specified commission, "to buy and sell for the account of the plaintiff, upon her order and direction so to do, any of the stocks which are bought and sold in the New York Stock Exchange;" that between certain dates plaintiff "sent and delivered to defendants 13 separate orders or directions to buy and sell for her account specific numbers of shares of the stock of the Western Union Telegraph Company, the same being one of the stocks bought and sold by the New York Stock Exchange, at prices therein designated;" that the orders could have been executed by the exercise of reasonable diligence, but defendants failed to execute them, to her damage, etc. A demurrer on the ground that the complaint did not state facts sufficient to constitute a cause of action was sustained, and plaintiff appeals.

Argued before LARREMORE, C. J., and VAN HOESEN, J.

A. W. Otis, for appellant. Davison & Fischer, for respondents.

VAN HOESEN, J. The complaint does not allege that the defendants agreed to advance the money for the purchase of such stocks as the plaintiff might choose to order, nor does it allege that the defendants agreed to sell stocks

that the plaintiff did not possess, or to sell stocks that the plaintiff did not furnish for delivery. In the absence of such averments, it was necessary for the plaintiff to allege that she provided the defendants with the means of paying for the stocks that she wished them to buy, and that she placed within their reach the stocks that she instructed them to sell; for, unless they agreed to assume the risk, it was not the duty of the defendants to buy or to sell stocks on the plaintiff's account without being provided with the means of carrying out her orders. There is nothing in the complaint, therefore, to show that the defendants were under any obligation whatever to obey the instructions to buy and to sell that the plaintiff is said to have given. Fowler v. Bank, 67 N. Y. 143. Again, under the allegations of the complaint, nothing more than nominal damages could be recovered, even if it be assumed that the plaintiff has stated a cause of action. No special damages are alleged. There is nothing to show that the stocks that the plaintiff instructed the defendants to buy ever increased in value, or that any change in the market value of the stocks that she instructed them to sell caused her any loss. For aught that is alleged, the plaintiff may not have suffered the slightest pecuniary injury from the defendants' neglect to execute her orders. Though this defect is not a good ground for a demurrer, we deem it proper to call attention to it, that the proper allegations may be inserted if the plaintiff desires to amend. Railroad Co. v. Curry, 64 Tex. 85; Rider v. Pond, 19 N. Y. 262.

We think that the judgment should be affirmed, but we see no objection to granting leave to amend. There may be a question as to whether the case is to be governed by Railroad Co. v. Dane, 43 N. Y 241; or by the cases cited in Miller v. McKenzie, 95 N. Y. 580 et seq. I have assumed that the agreement sued on is not void for want of mutuality. See, also, Railway Co. v. Witham, L. R. 9 C. P. 16. Judgment affirmed, with costs.

LARREMORE, C. J., concurs.

STRAUSS et al. v. SEAMON.1

(Common Pleas of New York City and County, General Term. December 3, 1888.) ASSIGNMENT-WHAT AMOUNTS TO-EVIDENCE.

A paper purporting to be an assignment of a judgment for costs by a party to his attorney cannot have that effect where it is unacknowledged, and unsupported by any proof of the signature, delivery, or time of execution, or by proof that anything was due the attorney.

Appeal from city court, general term.

Argued before LARREMORE, C. J., and VAN HOESEN, J.

E. G. Kremer, for appellants. S. F. Kneeland, for respondent.

PER CURIAM. It will be me to determine the validity of the assignment when proof is given that one was made. The paper that purports to be an assignment is not acknowledged, nor is there an iota of proof of the defendant's signature, of the delivery of the paper, or of the time of its execution. A singular feature of the case is that the attorney to whom it is said the assignment was made has not sworn that the assignment was for value, or that he ever received it, or that it was given to him at the date that appears upon its face. He has not claimed any lien, nor has he asserted that anything is due to him. A paper, unproved, unauthenticated, un vouched for,-a, paper that ought not to have been read until some one's oath had lent to it at least the authority of an exhibit, is all that there is to show that any assignment was ever made. There is not, as we have already said, the slightest proof that

1Reversing ante, 398.

the attorney has, or ever had, a lien, or that his client ever owed him a dollar; and the attorney who might have proved these things-if they were susceptible of proof-is silent. Upon this state of facts, no question can arise as to the validity or the legal effect of the supposed assignment. There is no assignment before the court. The order appealed from is reversed, with costs

and disbursements.

(15 Daly, 43)

ROSENTHAL v. PAYNE et al.

(Common Pleas of New York City and County, General Term. December 3, 1888.) JUDGMENT-OPENING DEFAULT-ATTENDANCE OF COUNSEL.

Where counsel for defendant were in attendance for two weeks prior to default, and were notified on Saturday that the case would be pressed on Monday, when the default occurred, the default will not be opened on the affidavits of counsel that they were detained in another court, where the affidavits do not show in what court or action they were detained, especially where no defense to the action is shown. Appeal from trial term; VAN HOESEN, Judge.

Action by Harris Rosenthal for wrongful attachment, originally brought against Hugh J. Grant, sheriff, for whom was substituted, under Code Civil Proc. § 1421, the indemnitors, E. Miner Payne, George C. Chase, William M. Brown, Frederick P. Eppens, Leonard B. Smith, Frederick Wiemann, John F. Pupke, and Thomas Reid. Default was entered against the defendants on June 18, 1888. On July 5, 1888, a motion to set aside default and restore the cause to the calendar was denied, as was also a motion for reargument, on August 2, 1888. From these two orders denying the application to open the default, and from the judgment entered on the default, defendants appeal. J. Geo. Flammer, for appellants. Horwitz & Hershfield, (Wales F. Severance, of counsel,) for respondent.

PER CURIAM. The defendants, being in default, were bound to present a reasonable excuse for suffering it to be taken, and also to show that they had a good defense upon the merits in the action. We have carefully looked over the papers submitted to the judge at special term, and, in our judgment, there is an utter failure to establish any defense whatever to the action. Nor do we think the judge at special term wrongfully exercised his discretion when he held that the reasons for suffering the default were not satisfactory. The affidavits of both counsel failed to show in what court they were detained, nor did they show the action in which they were engaged at the time. It also appears that they had been in constant attendance for two weeks prior to that time, answering ready, and that on the Saturday previous to the taking of the default they were notified that the plaintiff would press the case on the following Monday, and it was their duty to have been present at that time. The judgment and orders must, therefore, be affirmed; but, under the circumstances of the case, with costs of the appeal from the judgment only.

BONWELL v. HOWES.1

(Common Pleas of New York City and County, General Term. December 8, 1888.) FACTORS AND BROKERS-EMPLOYMENT BY AGENT-RIGHT TO COMMISSIONS.

An agent to sell land cannot, without special authority, bind his principal by the employment of a broker to effect the sale, and a promise of commission, though the customary method of selling land in the city where the transaction occurred, is by means of a broker.

Appeal from city court, general term.

Action by Charles E. Bonwell against John T. Howes in the city court to recover commissions as a real-estate broker. Judgment for plaintiff, which, 'Reversing 1 N. Y. Supp. 435.