Doyle v. Rector

• Court: New York Court of Appeals
• Writing for the Court: EARL
• Citation: 133 N.Y. 372,31 N.E. 221
• Decision Date: 24 May 1892
• Parties: DOYLE v. RECTOR, ETC., OF TRINITY CHURCH.

133 N.Y. 372
31 N.E. 221

DOYLE
v.
RECTOR, ETC., OF TRINITY CHURCH.

Court of Appeals of New York.

May 24, 1892.

Appeal from supreme court, general term, second department.

Action by Thomas Doyle against the Rector, Church Wardens, and Vestrymen of Trinity Church, in the city of New York, to recover damages for work and labor performed. From a judgment of the general term affirming a judgment for defendant, entered atspecial term on the findings of fact by the referee, plaintiff appeals. Affirmed.

[133 N.Y. 373]L. A. Fuller, for appellant.

[133 N.Y. 374]S. P. Nash, for respondent.

EARL, C. J.

The record in this case does not contain the evidence given upon the trial, and therefore the findings of fact by the referee must be taken as undisputed and true. Jesse Button, plaintiff's assignor, made a contract with the defendant to sink an artesian well. He fully performed his contract, and there was a balance due him for his work of about $450. After Button had completed his contract, at the suggestion of A. E. Foth, the defendant made a contract with Mr. Siegel to explode a torpedo in the well to improve the flow of water, for which it agreed to pay him $25. Foth and Siegel both acted in good faith, and they and it believed that the explosion would improve the well. Siegel exploded the torpedo, and it unexpectedly shattered and injured the well. Button was not consulted about the explosion, had nothing to [133 N.Y. 375]do with it, and knew nothing about it until after the injury was done. Foth was in no way the agent of Button, and did not act for him in making the suggestion of the torpedo, but acted for Siegel. The defendant, however, believed that in suggesting the torpedo he acted for Button. Subsequently Button demanded the payment of the balance due him for sinking the well, and it refused to pay him unless he would repair the well, and threatened if he did not repair it that it would do so, and deduct the expense thereof from the amount due him. He protested against this, and denied his responsibility for the explosion and injury. He then suggested a mode for repairing the well which required the use of additional iron tubing. It was finally agreed between him and it that, if it would supply the new iron tubes required, he would furnish the labor for repairing the consequences of the explosion, it claiming he should furnish the work at his own expense. He did not say that he would do the work without pay. But he went on under the arrangement, and did the work without any other or further agreement at...