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electricity which propelled the car in order to avoid the casualty which occurred. The effect of this action was not only to stop the car, but to reverse its movement, causing it to run backward, and before it could be again reversed it had again passed over the boy. In this regard all of the testimony submitted upon that subject tended to establish that the car was thus caused to pass over the body at least once, and perhaps twice, before it was finally stopped, due, undoubtedly, to the several reversals of the electric current. It is manifest that it was the duty of the motorman to do such acts as would prevent injury, and, if unable to do that, to prevent, so far as possible, its severity. If deceased was guilty of contributory negligence, he could not be heard to complain that the motorman did not do the best thing to be done under all the circumstances, if he did the best that his judgment dictated, in view of the impending peril. If, therefore, in attempting to prevent injury to the boy, he reversed the current, and omitted to restore the reversal when his car stopped, erring in judgment as to the best thing to do, or was unable, by reason of the quick action of the current, to do so, either of which conditions is permissible to be found from the evidence, no liability could attach to defendant by reason of such acts, as deceased must then be held to have produced the peril, and liability does not attach for error in judgment or inability to remedy in time the effect of the first act. Rbing v. Railroad Co., 53 Hun, 321, 6 N. Y. Supp. 641; Schimpf v. Sliter, 64 Hun, 463, 19 N. Y. Supp. 644; Voak v. Railway Co., 75 N. Y. 323.

In view of the condition, defendant requested the court to charge "that the defendant is not responsible for the error in judgment, if there was any, on the part of the motorman, in the management of the car after it struck the boy." The court replied: "I have already charged you upon this proposition." An exception to this refusal was duly taken. Reference to the charge shows that the court had previously used this language:

"I may say, if the defendant was entirely free from fault in the first instance, or if the boy was guilty of negligence in running upon the track in the way he did, and the car had passed over him, a number of feet beyond him, and the boy was injured in his legs, as it is claimed by one of the plaintiff's witnesses, and was attempting to get up from the track, and the motorman was careless in the management of his car by running back upon him, the plaintiff could recover, notwithstanding the boy was negligent in first going upon the track."

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I do not think this charge met the request. The jury might have thought, from the movement of the car and from what the motorman did, that the car was improperly managed, and yet, if the act of mismanagement was based upon the judgment of the motorman, no fault could be imputed to him, and this defendant was entitled to have clearly understood. It was not what was best to be done, viewed from the result after the completion of the act, but was the act done, in the judgment of the doer, best under his then condition? The defendant was entitled to have considered whether the act was based on the judgment of the operator or not, yet in the charge no word is said about any error in this regard, and we do not think that such significance is attached to the use of the word "careless" in the

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charge as to certainly convey to the jury a meaning that to find carelessness excluded a finding of error in judgment. The act of a person, done under great excitement and in much peril, may be the very opposite of what ought to be done, bringing a great calamity where security would attend proper action. But it would be working a still greater calamity to fasten responsibility where it be clear that the party acted the best that his light then presented. And it is the fact that such results are so likely to be reached that the person who is sought to be charged is entitled to full and explicit instructions upon the subject of which the charge here failed. final qualification by the court upon exception by the defendant, "if the car was negligently run back," did not change the position, for it made no mention of the question which the request sought to present and have considered by the jury; it added nothing to the charge already made, but only reiterated it by the use of a synonymous word. What the request aimed at had precise application to the evidence, the court said it had already charged, yet not a word upon the subject appears. I do not think that the general statement contained in the charge answered or complied with defendant's rights in the premises. We cannot now say that this was harmless error, or that the error was cured by anything which was said; on the contrary, we think that it was a matter of vital importance, in view of the very serious conflict of evidence and the circumstances and surroundings of the accident, and can readily see that the jury may have been misled into attaching the same importance to a dangerous and improper act, resulting from poor judgment, as to an act in fact carelessly and negligently done, and it was this distinction that defendant sought to have, was entitled to have, clearly pointed out, and in respect to which the charge failed. The following cases authorize this conclusion: Brick v. Bosworth (Mass.) 39 N. E. 36; Krulder v. Woolverton (Super. N. Y.) 29 N. Y. Supp. 696; Zabriskie v. Smith, 13 N. Y. 322; Carroll v. Tucker, 7 Misc. 482, 27 N. Y. Supp. 985; Hamilton v. Railroad Co., 53 N. Y. 27.

It is said that the charge is not broad enough to raise the question sought to be presented, and it may be subject to criticism in this respect. But it is clear what was intended. There was a very sharp conflict in the evidence, and, upon all the propositions of negligence of the defendant and contributory negligence of the deceased, the jury might have found either way, so far as the management of the car was concerned after the boy was first struck. But it is by no means clear that defendant was guilty of any negligence in first running down the boy. So that the case is left largely, if not entirely, to depend upon the subsequent management of the car. view of this condition, it is thought probable that the jury were misled as to the rule by which these acts were to be measured, and, if such be the fact, the court should order a new trial, even though the request and exception do not precisely meet the question. Shuttleworth v. Winter, 55 N. Y. 624; Johnson v. McConnel, 15 Hun, 295; Campanello v. Railroad Co. (Super. Buff.) 15 N. Y. Supp. 671; Cohen v. Kelly, 35 N. Y. Super. Ct. 42. I reach the conclusion that the testimony in this case calls for the application of the rule established

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by the authorities cited, and that the judgment and order appealed from should be reversed, and a new trial ordered, costs to abide the event.

(12 Misc. Rep. 506.)

JUDGMENT

SHIELDS v. CLEMENT.

(Superior Court of Buffalo, General Term. May 15, 1895.)

BY DEFAULT-FRAUDULENT REPRESENTATIONS.

A default judgment for fraudulent representation cannot stand, unless the intent to defraud was alleged in the complaint.

Appeal from municipal court.

Action by Thomas M. Shields against Louis B. Clement for fraudu lent representations. From a judgment by default for plaintiff, defendant appeals. Reversed.

Argued before TITUS, C. J., and HATCH and WHITE, JJ.

E. C. Robbins, for appellant.

William C. Fitch, for respondent.

WHITE, J. The only ground upon which a reversal of the judg ment appealed from is asked is that the complaint does not allege that in the transaction between the parties the defendant intended to cheat and defraud the plaintiff. It is well settled that, in order to justify a recovery for damage alleged to have been sustained as a consequence of false and fraudulent representations, the intent to defraud must be alleged as well as proved. Steamship Co. v. Mitchell, 1 Abb. Pr. (N. S.) 396; Cullen v. Hernz, 13 N. Y. St. Rep. 333; Marsh v. Falker, 40 N. Y. 565. When, as in this case, no complaint is served with the summons, the relief granted the plaintiff by default should be limited by his allegations as well as by his proofs. Code, § 1207; Stevens v. Mayor, 84 N. Y. 296; Weatherby v. Wood, 29 How. 404; Beach v. Cooke, 28 N. Y. 508; Graham v. Read, 57 N. Y. 681; Evans v. Burton, 42 Hun, 652. The intent to defraud being an essential element in the plaintiff's case, it was necessary to allege as well as to prove it. No intent to defraud having been alleged in the complaint, the court below was not authorized to find any. Therefore, as the judgment establishes an intent to defraud, it is not warranted by the complaint, and should be set aside, and a new trial granted. All concur.

(12 Misc. Rep. 510.)

PARKER v. DAY.

(Superior Court of Buffalo, General Term. May 15, 1895.) PARTNERSHIP-LIABILITY OF PARTNER TO COPARTNER FOR SERVICES. Services rendered by a lawyer, at the request of his partner, to an estate of which the partner is executor, will be held to have been performed for the benefit of the firm, where payments on account of such services were entered on the books as partnership funds, and divided between the partners, and the executor is not liable on account of such services. 30 N. Y. Supp. 267, reversed.

Appeal from equity term.

Action by Le Roy Parker against David F. Day for the value of professional services. Judgment was entered in favor of plaintiff. 30 N. Y. Supp. 267. Defendant appeals. Reversed.

Argued before TITUS, C. J., and WHITE, J.

George S. Wardwell, for appellant.

Adelbert Moot, for respondent.

WHITE, J. The parties to this action are lawyers, and the plaintiff is admitted to practice his profession in the state of Michigan. They became partners on May 1, 1887, with offices in this city. The copartnership was to continue from year to year, subject to termination on April 30th in any year, on one month's notice. The firm was dissolved May 1, 1890. In June, 1887, the defendant qualified as executor of the last will and testament of Adeline C. Hotchkiss, deceased, in the state of Michigan. The estate of Mrs. Hotchkiss was worth, perhaps, $60,000. Claims to a large amount were made against the estate, and, in defending against them, the plaintiff, and the defendant too, performed legal services of considerable value. The plaintiff was requested by the defendant to perform or join him in the performance of those services, and the most important question about which the parties disagree is whether the plaintiff acted as an attorney and counselor at law in this state and in Michigan upon the retainer and implied promise of the defendant to personally pay him what such services would be worth, or whether the plaintiff performed the services as a copartner with the defendant, with the understanding that his compensation was to come from the estate of Mrs. Hotchkiss. To my mind there is a great preponderance of evidence in favor of the defendant upon this question. It appears without dispute that the books of account and office registers of the firm were kept from the beginning to the end almost exclusively by the plaintiff, and the correspondence of the firm was largely conducted by him. These records and this correspondence covered the Hotchkiss estate business, and clearly indicate that it was treated by the plaintiff as firm business; at any rate, until about the time of the dissolution. Moneys in considerable amounts, from time to time received by each of the parties from the Hotchkiss estate, and on account of the services rendered by the plaintiff, were entered upon the firm books, and divided between the plaintiff and defendant in the proportions provided for in their articles of copartnership. A statement of the firm's assets made up by the plaintiff at the time of the dissolution contains an item of $6,000, which the plaintiff even now testifies represented what he thought at the time should be paid by the estate to the firm or to him and the executor together. No claim of the character now sought to be enforced by the plaintiff was ever made until about the time of the dissolution, and up to that time his every act indicated that he expected his compensation with that of his partner to come from the estate. The rule of law that the defendant is not permitted, either in this state or in Michigan, to enforce any claim for legal services rendered by him or by the firm of Day & Parker as attorneys for

the Hotchkiss estate is invoked as a reason why the plaintiff here should be allowed to recover. The rule is a salutary one, and might be applied with profit if either Day or Day & Parker were seeking to enforce such a claim against the estate. The reason is without force in this controversy, in my opinion.

If the question of fact whether the parties understood that the defendant, as an individual, was to compensate the plaintiff for his services, or that such compensation should be derived from the estate for the benefit of their copartnership business, were a close one, a desire to square the conduct of the partners with the strict rules of law would naturally lead to the conclusion that the arrangement under which the services were rendered by the plaintiff was as he contends. But from my point of view the question is not a close one at all. To my mind it is clear that the business was considered that of the partnership, and that to hold the contrary is to permit the parties to stultify themselves. Their every word and act to the time of the dissolution establishes the correctness of this position. The circumstance that in some instances the parties, in receiving moneys, went through a form which on its face might indicate that they were dealing with each other as individuals, and not as copartners, but strengthens my belief that those forms were used merely as forms, and in no sense to represent the truth of the transaction. In each instance the use of those forms was immediately followed by an actual division of the moneys between themselves in the proportions and in accordance with their partnership articles.

If the evidence of the plaintiff in this case were positive and direct to the point (which, as I read it, it is not) that he understood at all times down to the dissolution of the firm that his services were performed for the defendant as an individual, and not for the benefit of the firm, then, clearly, such testimony, being flatly contradicted by his acts while the partnership existed, would be entitled to but little weight. Lynch v. Pyne, 42 N. Y. Super. Ct. 11; Keller v. Manufacturing Co., 39 Hun, 348; Molloy v. Railroad Co., 10 Daly, 453; O'Brien v. McManus, 13 Daly, 37. But it is unneces sary to invoke the rule expounded in those cases, because the plaintiff does not testify to a single fact which is inconsistent with the view here taken. I do not think that the plaintiff's evidence that defendant requested him to perform these services conflicts with this view of the matter. Such a request is not at all inconsistent with the idea that they were in truth and in fact to be rendered for the benefit of the firm, in precisely the manner and to the extent that they were so considered and treated by both parties afterwards. Nor are we interested at this time in the fact that the defendant, in rendering his account as executor to the court in Michigan, claimed under oath to have paid to the plaintiff all of the moneys there tofore received by both of them, except so far as that fact may help us to come to a correct decision of the vital question here. In the absence of such conduct on the part of the plaintiff as would tend to clearly establish the contrary to be the truth of the matter, it may well be that the forms adopted by the defendant in handling the

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