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to support it. If any error was committed in receiving testimony tending to show that Ammon & Goslin participated in the firm profits, we do not see how it could have had any harmful effect upon the appellant. No reference was made to this testimony in the charge, and its application to the issues was so remote in any view that we think it extremely improbable that it had any influence upon the jury. The judgment should be affirmed.
Judgment of municipal court affirmed, with costs.
HART V. MALONEY. (Supreme Court, Appellate Division, Second Department. February 11, 1903.) 1. ACTION FOR SERVICES-EVIDENCE OF EMPLOYMENT,
Testimony of plaintiff, in an action to recover for services in purchasing an electric light plant, that he went to defendant and told him he came pursuant to a telegram from a third person; that he told defendaat he had obtained papers relative to the plant, and showed them to him; that defendant examined them, and expressed his satisfaction with the showing, and said he wanted plaintiff to represent him in the matter, and, if the plant was purchased, wanted it taken in plaintiff's name, and that he would take care of plaintiff in the matter,-is sufficient to show an employment by defendant, and an agreement to pay the reaBonable value of the services.
Hirschberg, J., dissenting.
Action by Alexander R. Hart against Martin Maloney. From a judgment on dismissal of the complaint at the close of the evidence on both sides, plaintiff appeals. Reversed.
Argued before GOODRICH, P. J., and BARTLETT, JENKS, WOODWARD, and HIRSCHBERG, JJ.
Meyer Auerbach (Abram I. Elkus and James N. Rosenberg, on the brief), for appellant.
William J. Fanning, for respondent.
WILLARD BARTLETT, J. This action was brought to recover compensation for services alleged to have been rendered by the plaintiff upon the employment of the defendant in bringing about a sale to the defendant of the property of the Jamaica Electric Light Company. The complaint alleged the employment of the plaintiff by the defendant, an agreement on the part of the defendant to pay the plaintiff for the services which he should render, and the rendition of such services. It further alleged that it was agreed between the parties that, in case purchase by the defendant of said property could be consummated, the plaintiff was to receive from the defendant for his services stock of the actual value of $20,000 in the corporation owning the business and franchises of the Jamaica Electric Light Company, the said stock to have an earning capacity of 5 per centum per annum; that subsequently the defendant, through plaintiff's influence, “purchased the said Jamaica Electric Light Company” for $325,000, but for convenience took title in the name of the and 114 New York State Reporter defendant's private secretary; and that defendant, though often requested so to do, failed to turn over to the plaintiff the $20,000 in stock as agreed upon. There was also an allegation that plaintiff's services were reasonably worth $20,000, and that he had received no compensation whatever. The answer was substantially a general denial. At the close of the evidence on both sides the learned trial judge dismissed the complaint on the ground that there was no question to submit to the jury, stating that there was no evidence that the defendant ever employed the plaintiff, but that if he was employed by anybody it was by a Mr. Charles A. Porter, of Philadelphia, through whom most of the transactions were conducted.
A careful examination of the testimony as it appears in the printed record indicates that in this ruling the learned trial judge must inadvertently have overlooked some of the testimony which had been given. In that of Mr. Hart, the plaintiff, the witness gives an account of an interview with Mr. Maloney, the defendant, in which the plaintiff told the defendant that he came to see him in pursuance of a telegram from Mr. Porter, which he produced, and showed him as his introduction. The witness then goes on as follows:
“I told him I had seen Mr. Williamson in relation to the purchase of the plant at Jamaica, that I had obtained from him the information that was necessary to form an opinion as to its value, and handed him a paper containing a list of the franchises of this company; also a list of its contracts, its expenses, and its income, showing that the company was earning, Mr. Maloney examined the paper, and expressed his satisfaction with the showing. and he then made the proposition to me that I should stand for him in the matter; that he did not wish to be known in the transaction; that if the plant was purchased he desired to purchase it in my name for him, and that he would take care of me in the matter. I left the paper with him.”
This suffices, we think, to make out a prima facie case of the employment of the plaintiff by the defendant as alleged in the complaint.
So far as a promise to pay for the plaintiff's services is concerned, it is true that the testimony of the plaintiff himself negatives the making of any express agreement on this subject. A promise, however, appears clearly to be implied by this statement from the testimony of the plaintiff :
"He [the defendant] never said to me that he would pay me for my services in buying this property. Not in that language. He did say so in substance. He said he would take care of me."
In another part of his testimony the plaintiff also made this statement:
"Mr. Maloney never at any time told me that he would gire me $20,000 additional stock to be issued if this purchase was concluded. He never gave me to understand that in conversation or in writing or in any way; he simply said I would be taken care of.”
This would seem to be ample proof to sustain a finding of an agreement to pay the plaintiff the reasonable value of his services, and the complaint is so drawn as to sustain a recovery on that theory. At the close of the case the plaintiff's counsel expressly asked to go to the jury on a quantum meruit. That the defendant admitted an obligation on his part to pay the plaintiff for what he did in his behalf also appears from the testimony of William L. Wood, cashier of the Bank of Jamaica, who gave evidence in regard to an interview at which the compensation which Mr. Hart was to receive for his services was discussed between Mr. Maloney and others. "The substance of the conversation," said the witness, "was that they were to capitalize the company in some way, and Mr. Hart was to get $20,000 of the stock. Mr. Maloney said this." These extracts from the record suffice, we think, to show that the learned trial judge erred in withdrawing the case from the consideration of the jury. The judgment should therefore be reversed, and a new trial granted.
Judgment reversed, and new trial granted, costs to abide the event. All concur, except HIRSCHBERG, J., who dissents.
HUEBNER V. HAMMOND et al. (Supreme Court, Appellate Division, First Department. February 6, 1903.) 1. NEGLIGENCE-MASTER AND SERVANT-PLACE TO WORK.
Where a longshoreman employed by a steamship company in loading a steamer was ordered by the foreman to go onto a barge not belonging to such company, and assist in hauling it alongside, where its load could be transferred to the steamer, and in obeying such order the man stepped on a grate covering a hole in the deck of the barge, when the grate slipped, injuring him so that he died, such steamship company was not negligent because of the condition of the deck of such barge, or in not
inspecting such deck before sending such man onto the barge. 2. SAME-VOLUNTEER ON VESSEL-DUTY OF OWNER.
Where the owner of a barge, containing a load to be transferred to a steamer, furnished a sufficient number of men to put the barge in place, he owed no duty to an employé of the steamship company who was ordered by his boss to go onto the barge and assist in bauling it into position, and who in doing so stepped on a grate covering a hole in the deck, and by reason of the grate slipping was injured so that he died, and such owner was not liable for damages for such injury.
Laughlin and O'Brien, JJ., dissent in part. Appeal from trial term, New York county.
Action by Marie Huebner, as administratrix of the estate of Otto Huebner, deceased, against George L. Hammond and another. From a judgment for defendants, plaintiff appeals. Affirmed.
This is a statutory action, based upon the statute of New Jersey, which is similar to that in this state, to recover for the death of Otto Huebner, alleged to have been caused by the negligence of the defendants. The decedent was in the employ of the respondent company as a longshoreman, and had worked in that capacity for several years. On the morning of the 8th of May, 1902, the Patricia, a steamship owned by the respondent company, was lying at the south side of Pier No. 1, the northernmost of three piers on the Hudson river, in Hoboken. The decedent and eight or nine other longshoremen had been engaged in transferring a cargo of lead from a lighter or barge to the Patricia. The Excelsior, a lighter owned by the respondent Hammond, was lying in the same slip or basin along the north side of Pier No. 2, loaded with a cargo of rosin to be transferred to and shipped by the Patricia. She was awaiting the unloading of the cargo of lead, and her cargo was to be unloaded into the Patricia at the place occupied by the lead lighter. The Excelsior was square at both ends, and had no propelling power. The rosin was in barrels which lay in tiers upon the deck, covering the entire deck, except a space of about eight feet at either end. and 114 New York State Reporter The crew of the Excelsior consisted of only two men, a master or captain and an assistant or mate. As the longshoremen finished unloading the lead, the boss stevedore, also in the employ of the respondent company, ordered the captain of the Excelsior “to come alongside next," and ordered the decedent and other longshoremen to remain on the lead lighter, which was being pulled away by lines attached to Pier 2, and go aboard the Excelsior for the purpose of aiding the captain and mate in pulling her alongside the Patricia and of then unloading the cargo. There was some conflict in the evidence as to the manner in which the Excelsior was being pulled over to the Patricia, but there was evidence tending to show and justifying the inference that one line had been thrown from the bow and another from the stern of the Excelsior and made fast to the Patricia; that the captain was at one end, and the mate at the other, pulling on these lines; that the boss stevedore then called to the captain of the Patricia to pull up to the lead lighter, and take the stevedores aboard, which he did; that the stevedores came aboard the Excelsior at or near the stern or bow; that some of them proceeded to assist in pulling in the bowline, and others, among whom was the decedent, passed to the middle of the Excelsior; that the boss stevedore then further ordered the longshoremen to give the captain and mate a hand in bringing the Excelsior alongside, and the decedent and others started for the stern, evidently intending to comply with the order. As the decedent stepped down from the barrels to the clear part of the deck he stepped upon a grating covering a manhole in the deck for ventilating purposes, which was about the size of an ordinary coal hole in a sidewalk. The grating tilted up edgewise, letting one foot through, and, the other foot passing down the other side, the decedent landed astride the upturned edge of the grating, inflicting injuries which caused his death. There was a tight cover for use over the grating at times when it was not necessary to have it open for ventilating purposes, but it was off at the time in question. This was an iron grating, the thickness of which does not appear. It rested on an iron flange three-quarters of an inch below the surface of the deck, and about half an inch wide. The undisputed evidence showed that the grating was in place at the time the decedent stepped upon it, so that it appeared all right, but it was smaller than the frame in which it set. The only direct evidence as to the condition of the grating when in place was the testimony of one witness, who first testified that there was a play of about a quarter of an inch all around it when placed in the center, but he subsequently testified that the entire play was only a quarter of an inch. The grating was not fastened in any manner, and the undisputed evidence is that although in place it did slide and tip up when the decedent stepped upon it. The testimony of the captain and mate indicated that they could have brought the lighter alongside the steamship without any assistance from the longshoremen; but it appears that they were making slow progress, and it would have taken them much longer to do so unassisted. It also appears that they were further aided by having their stern line, which was fast to Pier 2, thrown off by an employé of the respondent company by direction of the boss stevedore. It was also shown that it was the general custom in such cases for the longshoremen to assist in this manner in bringing the lighters alongside.
Argued before VAN BRUNT, P. J., and McLAUGHLIN, PATTERŠON, O'BRIEN, and LAUGHLIN, JJ.
Perry D. Trafford, for appellant.
LAUGHLIN, J. It could not be said as matter of law that the decedent was guilty of contributory negligence. That was a question for the jury, and should have been submitted to the jury if there was evidence tending to show negligence on the part of either of the defendants.
The first question to be considered is whether the decedent's employer owed him any duty the failure to perform which caused or contributed to his death. The appellant contends that the respondent company is liable under the rule requiring the master to exercise reasonable care in providing for his servants a safe place in which to perform their duties, and, manifestly, this is the only ground upon which it could be argued that liability should be predicated; for if the boss stevedore was negligent in giving the order the master would not be liable._ Keenan v. Railroad Co., 145 N. Y. 190, 39 N. E. 711, 45 Am. St. Rep. 604. We are of opinion, however, that the facts do not bring the case within that rule. It was a temporary place of employment at most, and it was not furnished by the employer. The lighter was neither owned nor controlled by the employer. The decedent was as well aware as his master that no inspection had been made by the latter of the condition of the deck of the lighter before the decedent and other longshoremen were directed to go aboard. It would be an unreasonable extension of the rule to hold the master liable for a failure to inspect the deck of the lighter before allowing his employés to go aboard for the purpose of performing temporary duty thereon. The facts, we think, bring the case within the doctrine of risks assumed by employés. Moy v. Steamship Co. (Super. Ct.) 33 N. Y. Supp. 563; Dixon v. Telegraph Co. (C. C.) 68 Fed. 630, the doctrine of which was approved by McGuire v. Telephone Co., 167 N. Y. 208, 60 N. E. 433, 52 L. R. A. 437; Hart v. Naumburg, 123 N. Y. 641, 25 N. E. 385.
The question of whether the respondent Hammond owed a duty to the decedent and was guilty of actionable negligence is not free from doubt. I am of opinion, however, that the decedent was rightfully upon the lighter in the performance of a duty which he owed to his employer. In view of the custom and of the act of the captain in taking the decedent aboard, he was there by the consent or implied invitation of the owner of the lighter from which arose the duty of reasonable care, to see that he sustained no injury from a negligent condition or concealed trap in the deck of the vessel. Stastney v. Railroad Co. (Super. N. Y.) 18 N. Y. Supp. 800; Shear. & R. Neg. (5th Ed.) § 183; Thompson, Comm. Neg. $ 985; Wright v. Railway Co., 1 Q. B. Div. 252; Railway Co. v. Bolton, 43 Ohio St. 224, i N. E. 333, 54 Am. Rep. 803. Although the decedent was aiding in the performance of a duty which devolved on the owner of the lighter, he was not a mere volunteer for the benefit of the lighter owner only, for his primary object was to expedite his emplover's business. The owner of the lighter owed a duty to his employés, and to those coming on board the lighter on business by his invitation or consent, express or implied, to use reasonable care to maintain this grating in a safe condition or to warn them of the danger. Newell v. Bartlett, 114 N. Y. 399, 21 N. E. 990; Fogarty v. Bogart, 43 App. Div. 430, 60 N. Y. Supp. 81; Delaney v. Railroad Co., 78 Hun, 393, 29 N. Y. Supp. 226; Griffin v. Manice, 160 N. Y. 188, 59 N. E. 925, 52 L. R. A. 922; Dunn v. Durant, 9 Daly, 389; Coughtry v. Mills Co., 56 N. Y. 124, 15 Am. Rep. 387. The evidence, being undisputed that it was in place, and that it tipped up