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STEIN v. KREMER et al.

(Supreme Court, Appellate Term. November 24, 1908.)

ATTORNEY AND CLIENT (§ 129*)-DUTIES TO CLIENT-ACTIONS FOR NEGLIGENCE. In an action against attorneys for damages resulting from their negligence in drawing a contract, plaintiff alleged, and testified, that he and his intending employers jointly employed defendants, counselors at law, to draw a contract for his employment for one year, and the contract which was so drawn and paid for, and, on advice of defendants, signed, was decided by the court to be a contract determinable at will. Held, that the case was for the jury.

[Ed. Note. For other cases, see Attorney and Client, Cent. Dig. § 290; Dec. Dig. § 129.*]

Seabury, J., dissenting.

Appeal from City Court of New York, Trial Term.

Action by Meyer Stein against Julius G. Kremer and Irving I. Kremer. Judgment for defendants, and plaintiff appeals. Reversed. Argued before GILDERSLEEVÉ, P. J., and MacLEAN and SEABURY, JJ.

Henry Kuntz (Sigmund Horkimer, of counsel), for appellant.
Abraham H. Sarasohn, for respondents.

PER CURIAM. As alleged and as testified, the plaintiff having agreed with intending employers for a year, he and they jointly employed the defendants, counselors at law, to draw a contract for his employment for that period, and the contract, by one of them drawn and which the plaintiff as to his part paid for and on advice signed, was, as ruled by this court on a former appeal, a contract determinable at will. Upon such allegations, testimony, and determination, the complaint might not be, as it was, dismissed when the plaintiff rested.

Judgment reversed and new trial ordered, with costs to appellant to abide the event.

SEABURY, J. (dissenting). The plaintiff alleges that the firm ot Kooperstein & Schwartz agreed to employ him as a designer for the term of one year, and that he employed the defendants, who are lawyers, to draw a contract expressing such an agreement. He also alleges that the defendants drew a paper purporting to be such a contract, which, in fact, prescribed no definite term of hiring, that his employer discharged him before the expiration of a year, and that he recovered judgment against his employer for the breach of said contract, and that said judgment was set aside by the appellate tribunal on the ground that the contract did not specify a definite term of employment. The plaintiff therefore demands judgment against the defendants for the amount of the judgment which he recovered against Kooperstein & Schwartz, and which the Appellate Court reversed for the reasons stated. These facts having been proved in the court below, the trial justice dismissed the complaint. From the judgment entered upon such dismissal, the plaintiff now appeals to this court.

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

and 146 New York State Reporter

The reason assigned by the trial justice for dismissing the complaint was that in his opinion the contract stated a definite term of employment. So far as the court below is concerned, that question has been determined to the contrary (Stein v. Kooperstein & Schwartz, 52 Misc. Rep. 481, 102 N. Y. Supp. 578), and that decision is binding upon the lower court, although its individual opinion as to the question involved may be different. The defendants, as attorneys, were not insurers of the correctness of the work which they undertook to perform for the plaintiff. The duty of the attorneys was to bring to the conduct of their client's business "the ordinary legal knowledge and skill common to members of the legal profession." 4 Cyc. 956. In order to recover in this action, it was necessary for the plaintiff to prove that the defendants had not brought to the conduct of the business with which he intrusted them the ordinary legal knowledge and skill common to the members of the legal profession. This the plaintiff did not prove merely by offering the contract in evidence and the decision of the court reversing a judgment upon it. It cannot be said that the question involved in the contract was entirely free from doubt, and the fact that two trial justices took the same view of the contract as the defendants is itself evidence of the fact that the defendants should not be held liable for the breach of this contract of employment as attorneys. In the absence of any evidence to show that the defendants had omitted to exercise the ordinary skill, prudence, and knowledge common among members of their profession, the complaint should have been dismissed. Although the court assigned an erroneous reason for dismissing the complaint, the complaint was properly dismissed. The judgment appealed from should therefore be affirmed.

CATZER V. BROOKLYN, Q. C. & S. R. CO.

(Supreme Court, Appellate Term. November 24, 1908.)

DAMAGES (§ 132*)-EXCESSIVE DAMAGES-PERSONAL INJURIES.

Plaintiff's hands were cut by a piece of glass, and two fingers of the right and left hand were swollen, the scar on his right hand being permanent, and he suffered pain for five months thereafter. Plaintiff's wages were $12 a week, and the injuries incapacitated him for work for four weeks. Held, that a judgment for plaintiff for $250 was excessive, and would be reduced to $100.

[Ed. Note. For other cases, see Damages, Cent. Dig. § 379; Dec. Dig. § 132.*]

Seabury, J., dissenting.

Appeal from Municipal Court, Borough of Manhattan, Second Dis

trict.

Action by Joseph Catzer against the Brooklyn, Queens County & Suburban Railroad Company. From a judgment for plaintiff, defendant appealed. Reversed, and new trial ordered, unless plaintiff accepts the judgment as reduced, when it will be affirmed as modified. Argued before GILDERSLEEVE, P. J., and MacLEAN and SEABURY, JJ.

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

George D. Yeomans (Francis R. Stoddard, Jr., of counsel), for appellant.

Henry Lieb, for respondent.

PER CURIAM. The judgment is excessive, and should be reversed, unless the plaintiff be willing to accept $100.

Judgment reversed and a new trial ordered, unless the plaintiff will stipulate within five days to modify the judgment by reducing the same to $100 and appropriate costs in the court below, in which event the judgment as modified will be affirmed without costs in this court.

SEABURY, J. I dissent. This action was tried by the court without a jury and judgment was awarded for the plaintiff for $250. The action was brought to recover damages for personal injuries. The plaintiff's hands were struck by pieces of glass and cut, and two fingers of the right hand and the left hand were swollen. The testimony shows that the scar on the plaintiff's right hand will be permanent, and that up to the day of the trial, which was five months after the accident, the plaintiff suffered pain from his injuries. The plaintiff was employed at the rate of $12 a week, and by reason of his injuries was unable to work for a period of four weeks. In view of these circumstances, I think that this court has no right to reduce the plaintiff's recovery to $100. The judgment should be affirmed, with costs.

HARTRIDGE SCHOOL v. RIORDAN.

(Supreme Court, Appellate Term. November 24, 1908.)

SCHOOLS AND SCHOOL DISTRICTS (§ 8*) — PRIVATE SCHOOLS - PUPILS AND TUITION EVIDENCE.

In an action by a school for the tuition of defendant's daughter, evidence held insufficient to establish a contract for tuition for an entire year at a certain charge without deduction for absence or withdrawal. [Ed. Note.-For other cases, see Schools and School Districts, Cent Dig. 11; Dec. Dig. § 8.*]

Seabury, J., dissenting.

Appeal from Municipal Court, Borough of Manhattan, Fifth District.

Action by the Hartridge School against James Riordan. From a judgment in favor of plaintiff, it appeals. Affirmed.

Argued before GILDERSLEEVË, P. J., and MacLEAN and SEABURY, JJ.

Julian Hartridge, for appellant.

Atwater & Cruikshank, for respondent.

PER CURIAM. Whether the contract between the plaintiff's assignor and the defendant, relative to the introduction of his daughter. into a school kept by the former as a resident pupil for an entire year

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 112 N.Y.S.-69

and 146 New York State Reporter

at a certain charge, and without deduction for absence or withdrawal, was concluded by and between them upon those terms, was a question of fact, determined by the trial justice in favor of the defendant, who from the testimony adduced (much under the pleadings being irrelevant) does not appear to have expressly contracted, nor does he impliedly appear to have so agreed as it was not shown that his attention was directed or called to matter pertaining thereto on an application blank of remote date, or in a catalogue of the current year. The judgment rendered for the plaintiff for the sum that was payable in advance must therefore be affirmed.

Judgment affirmed, with costs to the respondent.

SEABURY, J. (dissenting). The evidence shows that the contract between the parties was an entire contract. Under it the defendant's daughter entered the Hartridge School for the school year. Upon the application blank, which the defendant signed, it is distinctly stated that:

"It is understood that pupils are entered for the entire year and no reduction will be made for absence or withdrawal."

There is other evidence which sustains the view that the defendant knew that the provision quoted above was part of the contract which he made with the plaintiff. The defendant's daughter entered the school and remained a short time, and was then withdrawn from it on account of sickness. The trial court has awarded judgment for the plaintiff for one-half of the yearly tuition fee. The contract being entire, the amount due under it cannot be apportioned. If the plaintiff was entitled to recover at all, it was entitled to recover the full amount. The judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event.

SHAPIRO v. THOMAS B. LEAHY BLDG. CO.

(Supreme Court, Appellate Term. November 24, 1908.)

1. APPEAL And Error (§ 1140*)-REVIEW-EXCESSIVE VERDICT. Where, in an action for a balance due on contracts for work and materials, the documentary evidence conclusively shows that the balance due is but a certain amount, a verdict for a greater amount is unwarranted, and will be set aside, unless plaintiff stipulates to reduce the same. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 4464; Dec. Dig. § 1140.*]

2. APPEAL AND ERROR (§ 1011*) — REVIEW CONFLICTING EVIDENCE.

- QUESTIONS OF FACT-FINDING ON

Where, in an action for extra work performed and materials furnished, there was a conflict as to whom credit was extended, the decision of the trial justice will not be disturbed.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 3983; Dec. Dig. § 1011.*]

Appeal from Municipal Court, Borough of Manhattan, First District.

•For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Action by Adolph Shapiro against the Thomas B. Leahy Building Company. Judgment for plaintiff, and defendant appeals. Reversed, and new trial ordered, unless plaintiff stipulate to reduce the verdict to a certain amount, in which event the judgment, as so modified, to be affirmed.

Argued before GILDERSLEEVE, P. J., and MacLEAN and SEABURY, JJ.

Thomas P. De Graffenried, for appellant.
Jacob Levy, for respondent.

PER CURIAM. This action was brought to recover the sum of $402.27 alleged to be a balance due for work performed and materials furnished. The plaintiff's claim is based upon three contracts involving the amounts of $1,400, $1,300, and $175, respectively, and extra work performed and materials furnished of the value of $87, making the total cost price $2,962, upon which the plaintiff alleges only $2,559.73 has been paid, leaving a balance due of $402.27. The defendant resists this claim on the ground of payment as to the work performed under the contracts, and, as to the extra work, it claims that the work was not performed at its request.

The documentary evidence introduced conclusively shows that the plaintiff has been paid for the work performed under the three contracts with the exception of $18.47. As to the claim for the extra work performed, at the agreed price of $87, there was a conflict as to whom the credit was extended, and the decision of the trial justice as to this item should not be disturbed.

The judgment is reversed, and a new trial ordered, with costs to appellant to abide the event, unless the plaintiff stipulates to reduce the verdict rendered in his favor to $105.47 and costs, in which event the judgment, as so modified, will be affirmed without costs of this appeal to either party.

WILMERDING et al. v. STROUSE et al.

(Supreme Court, Appellate Term. November 24, 1908.)

1. SALES (8 179*)-IMPERFECTIONS-Waiver.

Ordinarily, without warranty, retention of goods waives claim for imperfections therein.

[Ed. Note. For other cases, see Sales, Cent. Dig. § 460; Dec. Dig. § 179.*]

2. PLEADING (§ 142*)-COUNTERCLAIM.

A breach of warranty is not available as a counterclaim in an action for the price of goods where pleaded as a defense.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. § 291; Dec. Dig. § 142.*]

3. SALES (§ 288*)-BREACH OF WARRANTY-WAIVER.

Breach of warranty is no defense to an action for the price of goods where the buyer retains them.

[Ed. Note. For other cases, see Sales, Cent. Dig. § 818; Dec Dig. § 288.*]

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

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