Parker v. Day

• Decision Date: 25 March 1898
• Citation: 155 N.Y. 383,49 N.E. 1046
• Parties: PARKER v. DAY.
• Court: New York Court of Appeals Court of Appeals

155 N.Y. 383

49 N.E. 1046

PARKER

v.DAY.

Court of Appeals of New York.

March 25, 1898.

Appeal from superior court of Buffalo, general term.

Action by Leroy Parker against David F. Day. From a judgment of the general term (33 N. Y. Supp. 676) reversing a judgment for plaintiff, he appeals. Reversed.

Adelbert Moot, for appellant.

George W. Cothran, for respondent.

PER CURIAM.

This action was brought to recover payment for legal services rendered by the plaintiff to the defendant. Adaline C. Hotchkiss died in Detroit, Mich., in 1887, and letters testamentary were issued to the defendant as her executor. Subsequently, claims of creditors amounting to about the sum of $60,000 were presented against her estate, and the services for which compensation is now sought were rendered by the plaintiff in defending the estate against such claims. The trial court found in favor of the plaintiff, and awarded judgment against the defendant for the sum of $2,000. The general term reversed the judgment, and ordered a new trial, but neither the order nor judgment stated that the reversal was based upon the facts. Section 1338 of the Code of Civil Procedure then in force provided that ‘upon an appeal to the court of appeals from a judgment, reversing a judgment entered upon a referee's report, or a decision of the court, upon a trial without a jury; or from an order granting a new trial, upon such a reversal; it must be presumed, that the judgment was not reversed, or the new trial granted, upon a question of fact, unless the contrary clearly appears, in the body of the judgment or order appealed from. In that case, the court of appeals must review the determination of the general term of the court below, upon the questions of fact, as well as the questions of law.’ We are thus, by the express provisions of the Code, required to presume that the reversal was based upon the law, and are precluded from a review of the facts.

Our examination of the record discloses no error of law. Our attention has been called to two exceptions taken to the admission of evidence. One was with reference to a conversation that took place between the plaintiff and the defendant at the time of the dissolution of the firm of Day & Parker, with regard to the plaintiff's services in the Hotchkiss matter, and the other was with reference to the introduction in evidence of a written notice of retainer of the plaintiff by one of the legatees under the will of Mrs. Hotchkiss, neither of which exceptions points to any error. It was also contended upon the argument that there was absolutely no evidence showing an employment of the plaintiff, and that, under the provisions of the Code then in force, it became a question of law. Upon this question the evidence is to the effect that the plaintiff and defendant talked over the subject of the claims presented against the estate of the decedent, and that, after the presentation of the principal claim amounting to the sum of $50,000, the defendant received from Detroit a box containing several thousand personal papers of the decedent. Upon its reception, he delivered the same to the plaintiff, requesting him to look up the evidence relating to the claims; and after that the matter was left generally to the plaintiff, to look up the entire testimony in this state, Michigan, and Kansas, and thereupon he performed the services for which he now seeks to recover. There can be no question but this request by the defendant would have constituted an employment under ordinary circumstances. It is claimed by him, however-First, that, the request coming from him as executor, the employment was by him as such, and that he is not personally liable therefor: and, secondly, that the plaintiff and defendant were both attorneys at law and co-partners in...