Lerche v. Brasher

• Decision Date: 18 January 1887
• Citation: 10 N.E. 58,104 N.Y. 157
• Parties: LERCHE v. BRASHER.
• Court: New York Court of Appeals Court of Appeals

104 N.Y. 157

10 N.E. 58

LERCHE

v.BRASHER.¹

Court of Appeals of New York.

January 18, 1887.

Action by an attorney to recover compensation for services rendered to the defendant's testator. The plaintiff appeals from an order of the general term affirming the ruling of the trial judge setting aside the verdict, and ordering a new trial.

G. A. Clement, for appellan.

Thomas E. Pearsall, for respondent.

FINCH, J.

The plaintiff brought this action, claiming to recover about $2,600 as compensation for services rendered to the defendant's testator in the character of his agent and attorney. The contract of employment was proved beyond all question, by evidence wholly uncontradicted, and of a kind open to no criticism. The services rendered began a few days before January 14, 1880, on which day the plaintiff collected a judgment of about $500 in favor of Van Wyck. On that day the latter, by a written instrument, the signature to which was proven and not questioned, appointed plaintiff his ‘attorney in fact’ for all matters pertaining to two actions which were specified. That the employment was earlier than that is evident from a letter of Van Wyck dated December 30, 1879, in which he speaks plainly of the existing relation. Other letters are quite as decisive; and, on the tenth day of February, 1880, Van Wyck gave to plaintiff a general power of attorney, covering substantially the transaction of all his business. The employment was further proved by at least one witness, who swore to the statements of the testator to that effect.

The general character of the services contracted for and rendered was also shown by evidence outside of anything which fell from the plaintiff. The property of the testator had been taken from him on account of his intemperate habits, and placed in the hands of a committee. Van Wyck had become restored to health and capacity, and entitled to receive back and manage his property. The committee had placed the estate in the hands of Morris & Pearsall, his attorneys; and in a letter dated February 27th Van Wyck notifies plaintiff that they had agreed to deliver the papers if he (Van Wyck) would call for them, and adds, ‘I shall not go, and so shall answer. They shall settle with you alone.’ That they did so settle, the defendant himself proved. The amount of property thus delivered over was about $28,000. The defendant also proved the payment of the Walsh mortgage of $5,500, and the interest upon it, to plaintiff. There was thus clear evidence of the employment and the general nature of the services rendered, outside of any testimony given by the plaintiff in his own behalf. A verdict was rendered in his favor for $750, or about one-quarter of his claim. A motion was made upon the minutes, and the exceptions taken, to set aside the verdict, and for a new trial, which was granted upon two grounds relating to the admission of evidence. On appeal the general term affirmed the order, but for other and different reasons.

The trial judge specified two such errors as the ground of his action. On the hearing, after the plaintiff had described the work he had done, he was asked if he had been paid for it. To this inquiry the defendant objected as involving a personal transaction with the deceased. The objection was overruled, an exception taken, and the witness answered, ‘No.’ The answer negatived a personal transaction with the testator, and was equivalent to a declaration that neither the deceased nor his administrator with the will annexed had paid for the services rendered. But while the objection was a good one, the evidence was wholly immaterial. The plaintiff was not required to prove the negative, and payment was an affirmative defense, the burden of establishing which was upon the defendant. No evidence in that direction was offered or given, and striking out the inadmissible answer would in no possible respect affect the result reached. We ought not to reverse a judgment on so narrow a ground.

The trial judge further held that it was error to admit the transcript from the register's office of New York of Van Wyck's power of attorney. When first offered, it was objected to as secondary evidence, and as no proof of the original. The court said, ‘It is no proof that Van Wyck executed it; it is simply proof that a paper of this kind is on record;’ and thereupon overruled the objection, and defendant excepted. The plaintiff then testified without objection that he had had the original in his possession, but had lost it, and on a careful search had been unable to find it. At a later period of the case the power of attorney was read in evidence, against an objection that there was no proof that Van Wyck ever executed it, and the paper was incompetent. By the Revised Statutes-volume 2, (6th Ed.) p. 1151, § 73-a power of attorney, authorizing, as did the one in question, the conveyance of real estate, may be recorded in the clerk's...