Forbes v. Chichester

• Decision Date: 24 February 1891
• Citation: 26 N.E. 914,125 N.Y. 769
• Parties: FORBES v. CHICHESTER.
• Court: New York Court of Appeals Court of Appeals

125 N.Y. 769

26 N.E. 914

FORBES

v.CHICHESTER.

Court of Appeals of New York.

Feb. 24, 1891.

Appeal from supreme court, general term, second department.

O'BRIEN, J., dissenting.

George A. Strong, for appellant.

Walter Edwards, for respondent.

O'BRIEN, J.

The plaintiff, a physician of very high professional and personal standing, presented a claim of $5,000 to the defendant as executor of the will of Robert Lenox Kennedy, deceased. The claim, having been disputed, was referred under the statute, and the referee reported against it, and the court at special term confirmed the report, and directed judgment against the plaintiff, which was affirmed at the general term. In the year 1887 the plaintiff and his wife accompanied the deceased on a journey to Europe at his request or upon his invitation. The deceased furnished the plaintiff with $50 before starting, for the purpose of defraying any small expenses in preparing for the journey; also the passage tickets for himself and wife, and a letter of credit for $1,000. The executor resisted the claim upon the ground that the plaintiff accompanied the deceased on the trip to Europe as an old friend and guest, and not upon an employment professionally. There is some evidence in the case tending to show that the deceased, who was a resident of the city of New York, while visiting in Philadelphia in the early part of the year 1887, consulted the plaintiff professionally, and then arranged the trip to Europe. The party sailed on the 14th of May, 1887, but the plaintiff and his wife remained abroad only until the 26th of June following, and arrived home on the 4th of July, the deceased and the rest of the party remaining in Europe. After arriving in England, the plaintiff and his wife did not remain with the deceased, but traveled by themselves, selecting the places visited according to their own desire and convenience, and the plaintiff saw the deceased while abroad only three times,-once at Southampton, on the day after the arrival of the steamer at that place, and twice in London, a few days later,-and received no communication from him, except one letter, which was not produced at the trial, and the contents of which do not appear. The plaintiff was not a competent witness to testify to any personal transaction between himself and the deceased, as against his executors, and no express contract of employment was shown, but it is claimed that such a contract could have been found or inferred from the facts shown. There was evidence in the case competent for the consideration of a court or jury on the question of employment professionally. It was certainly not of such a character as to require the referee to find in favor of the plaintiff. It after weighing it, and drawing such inferences as seemed to him just under all the circumstancs, he found against the claim, this finding could not be held to be against the evidence or without evidence, so as to present a question of law reviewable in this court. On the other hand, if this was an action triable by a jury, and the court upon evidence such as appears in the record should nonsuit the plaintiff, and refuse to submit the case to the jury, such a ruling would be clearly erroneous. In all cases involving disputed questions of fact, which are to befound or determined from circumstances or other facts capable of different inferences, or where the inferences to be drawn are not certain and incontrovertible, it is for the jury to ascertain and determine what the truth is, and, of course, the same rule applies to a court or referee on the trial of a question of fact. This appeal must turn upon the question whether the judgment under review is a judgment of nonsuit or a determination upon the merits. If it is true that the referee and the special term in this case did not weigh and consider and pass upon the evidence offered by the plaintiff, but simply decided that there was no evidence to be weighed or considered in support of the claim, then it is a nonsuit. Scofield v. Hernandez, 47 N. Y. 313. On the other hand, if the referee has considered the evidence given, and passed upon its weight and effect, and after doing so has drawn inferences and made findings adverse to the plaintiff's claim, then this court has no right to review his findings, as it cannot be said that they are without evidence to sustain them. It is therefore necessary to examine the proceedings upon the trial before the referee, and subsequently at the special term, in order to determine the true nature and character of the judgment.

The plaintiff's counsel, after giving such proof as he desired, announced that he rested the case, and the counsel for the defendant then moved to dismiss the complaint, on the ground that there was no employment proved. The case then states that the referee reserved his decision, ‘and subsequently rendered the following opinion.’ Then follows an elaborate opinion of the referee, in which he notes and refers to all the facts and circumstances; enumerates the facts that he deems established, and such as he concludes were not; states the inferences drawn by him; and concludes in these words: ‘I think the defendant's motion should be granted. I have reached this conclusion after a most careful examination and analysis of the evidence. The facts and circumstances proven, so far as they go, are not inconsistent with the plaintiff's claim, but they do not prove it in any legal sense.’ The case was then reopened by consent, and the claimant gave further evidence, and against rested; whereupon the defendant's counsel again moved to dismiss the complaint. No disposition was made of this motion at the time, but the referee reserved his decision. The defendant offered no testimony. The referee subsequently made his report, containing findings of fact and conclusions of law. After finding all the facts and circumstances which the plaintiff claims established the fact of employment, the referee found ‘that no employment of the plaintiff to attend said Kennedy in a professional capacity,...