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tiff for the interest on the money deposited by the plaintiff belonging to the society for the time plaintiff had been its treasurer. Plaintiff testifies that in the year 1906 “there was no interest, because the bank did not give me any, and in 1907 there was no interest.” The following questions were then asked, and answers given:
"Q. Did the society demand that you pay any interest? A. Yes; the society asked me to pay that interest. Q. Did you pay it? A. I paid it, and now I want it."
The foregoing is the basis of plaintiff's claim. The amount sued for, and for which he got judgment, was $23. It is not claimed that the plaintiff paid the money under duress, or that he and the defendant were laboring under any mutual mistake of fact; nor were any false statements made to him to induce such payments. The society simply asked the plaintiff for the interest for a time during which the plaintiff now claims he received none, and that fact he knew when he was asked to pay. Nevertheless he voluntarily and with full knowledge of all the facts paid the same. Under such circumstances he has no redress. Belloff v. Dime Savings Bank, 118 App. Div. 20, 103 N. Y. Supp. 273. There is no foundation for the judgment, and it must be reversed.
Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.
PACKTOR V. CITY OF NEW YORK et al. (Supreme Court, Appellate Division, Second Department. May 7, 1909.) 1. MASTER AND SERVANT ($ 90*)-INJURIES—CARE REQUIRED.
An employer need not anticipate and provide against every possible danger to workmen, but is only bound to use reasonable care for their safety.
[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. & 139 ;
Dec. Dig. § 90.*] 2. MASTER AND SERVANT (8 109*)-INJURIES–NEGLIGENCE.
While intestate was engaged in unloading snow from a wagon, the team, which was a steady-going team of draught horses, started up about three feet, causing intestate to fall from the wagon and injuring him. Held, that intestate's employer was not negligent for not unbitching the team or directing the driver to hold the reius before ordering intestate to unload the wagon.
(Ed. Note.—For other cases, see Master and Servant, Cent. Dig. 8 204; Dec. Dig. § 109.*] Appeal from Trial Term, Kings County.
Action by Lucy Packtor, as administratrix of Jacob Packtor, deceased, against the City of New York and another. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.
Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, RICH, and MILLER, JJ.
Henry M. Earle, for appellant.
Louis Cohn, for respondent Kordes. *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
WOODWARD, J. The complaint, which sets forth a cause of action for damages for personal injuries resulting in the death of plaintiff's intestate, was dismissed as to both defendants at the close of plaintiff's case. On the 2d day of February, 1905, the plaintiff's intestate was employed by the city of New York as a snow shoveler. He, with others, was on the day of the accident engaged in unloading snow and ice from carts as they were brought into a dumping yard. One Donohue, the foreman of the work, who appears to have had authority to direct the placing of the trucks and the work of the shovelers, ordered plaintiff's intestate and another to get upon a dump wagon and to shovel the snow and ice from the same. Plaintiff's intestate and his fellow workman climbed upon the wagon, and while engaged in throwing off the snow the team, a heavy, steady-going team of draught horses, started up about three feet, and the intestate fell over the rear end of the wagon, receiving injuries from which he subsequently died.
The injury alleged against the defendant the city of New York was that the accident was due to the order of Donohue, the superintendent of the defendant, directing the plaintiff's intestate to go upon this wagon without detaching the team or directing the driver to hold the reins, so as to control them. We are of the opinion that no such precautions were demanded of the defendant, assuming the foreman to have been engaged as a superintendent, within the meaning of the employer's liability act (Laws 1902, p. 1748, c. 600), as are now suggested. An employer is not bound to anticipate every possible contingency and to provide against it. He is bound only to use reasonable care, as that term is understood in law; and certainly no one would ever suggest that it was the duty of a master, employing competent drivers, horses properly broken and adapted to the heavy class of work here in progress, to take a team from the wagon while it was being unloaded, or to personally see to it that the driver was actually present at every moment with his hands upon the reins. Hundreds of years of practical work of this character has never suggested such a degree of caution as among the duties of the master, and the court very properly declined to permit such a question to go to the jury.
The plaintiff suggests no good reason why the defendant Kordes, who was the owner of the team and wagon, and who employed the driver, furnishing the entire equipment to the city of New York at a stipulated sum per day, should be held liable to the plaintiff, and no such reason suggests itself to us.
The judgment appealed from should be affirmed.
Judgment affirmed, with costs. JENKS and RICH, JJ., concur. BERG, P. J., and MILLER, J., dissent as to defendant Kordes.
WALLESTON V. FAHNESTOCK.
(Supreme Court, Appellate Term. May 7, 1909.) 1. BROKERS (& 53*)—COMPENSATION-SUFFICIENCY OF SERVICE.
In an action to recover for services in effecting a sale of defendant's automobile, under a complaint alleging that plaintiff acted as a broker in effecting the sale, it was necessary for plaintiff to show that he was the procuring cause of the sale, that he found the purchaser, and that through his efforts the minds of the parties met and resulted in an agreement on the terms of sale; but it is not necessary for him to show that he introduced the purchaser to the owner, nor that he was acquainted with the purchaser.
[Ed. Note.—For other cases, see Brokers, Cent. Dig. 8 74; Dec. Dig.
$ 53.*) 2. BROKERS (8 8*)-AGENCY-EVIDENCE.
Evidence in an action for a broker's services held insufficient to show that he acted as broker for defendant in the sale.
[Ed. Note.—For other cases, see Brokers, Dec. Dig. $ 8.*] 3. BROKERS (8 82*)— COMPENSATION-ACTIONS-PLEADING-VARIANCE.
In an action for services performed by plaintiff as a broker under a contract with defendant, recovery cannot be had on proof of a special promise to pay him a commission, which showed no employment of plaintiff.
[Ed. Note.-For other cases, see Brokers, Dec. Dig. $ 82.*] 4. EVIDENCE ($ 271*)-SELF-SERVING DECLARATIONS-LETTERS.
In an action for services as a broker, where there was no correspondence between plaintiff and defendant and no question of notice or demand, it is error to admit, at the instance of plaintiff, letters written by him to defendant after the services were rendered to show a demand for payment of his commissions, and containing evidence as to the agreement for services, which was denied by defendant, as they were in the nature of self-serving declarations.
(Ed. Note.-For other cases, see Evidence, Cent. Dig. 88 1068–1104; Dec. Dig. $ 271.*] Appeal from City Court of New York, Trial Term.
Action by Louis N. Walleston against Clarence Fahnestock. Judgment for plaintiff, and defendant appeals. Reversed.
Argued before GILDERSLEEVE, P. J., and DAYTON and GOFF, JJ.
Edward L. Tinker (Robert S. Johnstone and Arthur Ofner, of counsel), for appellant.
Alfred R. Osgoodby, for respondent.
GOFF, J. Plaintiff alleged that defendant engaged him as his agent to effect the sale of an automobile, and agreed to pay him a commission of 5 per cent. on the amount realized; that he obtained a purchaser, who bought the automobile for $5,000; and that the sale was effected solely through his agency. It appeared in evidence that the first knowledge plaintiff had of the defendant was when his friend Foy, a chauffeur, told him that he wanted to buy a car for his employer, and that the defendant had one for sale. Foy examined the car, and ascertained from the defendant by telephonic conversation *For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
its price, which was $5,700. Then he told plaintiff that he liked the car and thought he would buy it, and asked him if he could save him any money on its purchase. Plaintiff replied that he could, and Foy told him to go ahead and see what he could do with the defendant. Plaintiff saw the defendant at his home, and told him that a customer of his was willing to buy the car, and the price he would pay was about $4,500. Defendant said he would not sell it for that, and that his lowest price was $5,700. Plaintiff said he did not believe that he could get his customer up to that, but he would try. As he started to leave defendant said:
"Well, if the car is sold to Mr. Anderson (Foy's employer), you will get your commission.”
Plaintiff returned to Foy, and told him that the defendant refused his offer; but he thought he would take it, and advised him to see the defendant himself. Foy left to see the defendant, and several days afterward he told plaintiff that he had purchased the car for $5,000. That is the gist of the testimony as to the relation of plaintiff to defendant in the sale and purchase of the car. Plaintiff did not bring Foy and the defendant together. He did not bring to Foy's attention that the car was for sale. He did not effect or induce the agreement for sale. What he did do was to act as agent for Foy in his endeavor to have the price reduced, and, when he failed, to leave the purchase negotiations to Foy himself. What is there here to prove either an express or implied contract of employment to procure a purchaser for this car? Plaintiff in his complaint claims that he acted as a broker in effecting the sale. To sustain that he must show that he was the procuring cause of the sale, that he found the purchaser, and that through his efforts the minds of the parties met and resulted in an agreement on the terms of sale. Donovan v. Weed, 182 N. Y. 43, 74 N E. 563; Colwell v. Tompkins, 6 App. Div. 93, 39 N. Y. Supp. 478; Miller v. Vining, 112 App. Div. 304, 98 N. Y. Supp. 466. In Bellesheim v. Palm, 54 App. Div. 77, 66 N. Y. Supp. 273, the court said:
“The rule governing the plaintiff's claim is stated by Judge Earl in Wylie v. Marine Bank, 61 N. Y. 415: “Before the broker can be said to have earned his commissions, he must produce a purchaser who is ready and willing to enter into a contract upon his employer's terms (citing authorities).' It is not indispensable that the purchaser should be introduced to the owner by the broker, nor that the broker should be acquainted with the purchaser. But in such cases it must affirmatively appear that the purchaser was induced to apply to the owner through the means employed by the broker."
Applying these rules to plaintiff's case, it is clear that he rendered no service whatever to defendant, and that, if he rendered any service, it was to the purchaser. The cause of action utterly failed of proof. What remains for the jury? At the close of plaintiff's case counsel moved to dismiss the complaint, on the ground that facts sufficient to constitute the cause of action alleged in the complaint had not been proved.
"The Court: You are right about that. He did not bring the minds together. The only thing that will save it is that when he went to Dr.
being $5,700 and $5,250, and the offer was $4,500, yet he says the doctor told him: 'If I sell the car to Anderson, I will pay you your commission.' If it was not for that, I would dismiss the complaint, because he was not the procuring cause; but on that I have to let it go to the jury, to say if they believe that was the arrangement."
The learned justice correctly measured the testimony, and recognized that plaintiff had failed to prove that he was the procuring cause of the sale; but he overlooked the point that the cause of action stated in the complaint was for commissions earned by plaintiff as a broker in effecting a sale of the car, and not on a special promise made by defendant, for certainly what the defendant said was a special promise. It was not an employment or engagement in any sense. The plaintiff had rendered no service whatever. The purchaser had been procured, not through the efforts of the plaintiff. At best, the promise might be taken as an admission that in the event of sale he was entitled to commissions; but that would necessarily depend upon an antecedent condition that he had been employed or had rendered service in bringing the purchaser and seller together, which condition did not exist. The words “I will pay you your commission" mean “I will pay you that to which you are entitled as a broker." But he was not entitled to anything as a broker, therefore he was not entitled to commissions. How can one legally promise to pay a debt he does not owe? How can the defendant be held on his promise to pay commissions which had not been earned, and which the defendant could not be legally held responsible for? The most that can be claimed for this statement is that it was a promise to pay commissions that had not been earned.
Whether there was sufficient consideration to support the promise as a basis of action (Myers v. Dean, 11 Misc. Rep. 368, 32 N. Y. Supp. 237) is not necessary to determine. It is sufficient for this case to determine that the question held for submission to the jury was not the cause of action which plaintiff brought into court. The rule that plaintiff can only recover on the cause of action alleged in his complaint is too well settled to admit of question. Were such rule not strictly applied, a plaintiff might allege one cause of action in his complaint, and prove another on the trial, thereby misleading and precluding a defendant from having his day in court. In Truesdell v. Sarles, 104 N. Y. 164, 10 N. E. 139, the court said:
"The well-settled rule [is] that no judgment can be given in favor of a plaintiff on grounds not stated in his complaint, nor relief granted for matters not charged, although they may be apparent from some part of the pleadings or evidence."
Proper exceptions to the erroneous rulings of the learned trial justice on this point were taken when plaintiff closed, at the close of the case, and in the charge to the jury.
Of the other exceptions, but one will be considered. Over objection and exception there were admitted in evidence two letters written by plaintiff to defendant after the transaction was closed, on the theory of showing a demand for payment of his commissions. Already a bill which he sent was admitted in evidence and acknowledged to have been received and payment refused by defendant. No correspondence