Nutting v. Kings County Elevated Railway Co.

Cullen, J.: This action is brought to recover the sum of $9,000 and interest, which the plaintiff claims the defendant promised to pay him under the following circumstances: In 1887 the defendant, having been unsuccessful in its application to a commission appointed by the General Term for a determination that its railroad ought to be constructed, renewed its efforts to obtain the necessary consents from the abutting owners on Fulton street in the city of Brooklyn, and thus complete its franchise. The plaintiff was a property owner on that street. In. May, 1887, a person, representing himself as the -agent of the defendant, applied to the plaintiff for his written consent. The plaintiff expressed his willingness to consent, but wished to be paid for it the same as was paid to other property owners. The agent denied that other owners were being paid for their consents, but agreed that, if any such payments were made, the plaintiff [74] should he paid at the same rate as the others. On this agreement-the plaintiff executed and delivered the consent. The plaintiff is unable to identify this agent. Subsequently plaintiff learned that the company was paying or agreeing to pay the other owners ten per cent of the assessed value of their respective properties. Thereupon he sought the company and had a conversation with Wendell . Goodwin, its vice-president, in the company’s office. He repeated, to Goodwin his conversation with the agent, the agreement that he should be paid the same rate as other property owners, and his discovery that such owners were being paid. Thereupon Goodwin promised to pay the plaintiff the same as the others. Some time afterwards he again saw Goodwin on the subject, wlm referred him to Judge Shea, the general counsel of the company, who Goodwin said had the matter in hand, and was the person with whom the plaintiff'must then deal. Plaintiff saw Judge Shea, who told. him. that he understood the matter, and renewed the promise to pay.Shortly after the plaintiff went to' Europe, and upon his return he. found the defendant’s structure erected or in course of erection in front of his premises. He then applied to Goodwin for payment. Goodwin’s only reply was: “ When we have swept up, if there is anything left we will do something for you.” This the plaintiff, regarded as a refusal, aud brought an action against the company for an injunction. The defendant, about the same time, instituted condemnation proceedings against the plaintiff and others. These proceedings were resisted. The defendant succeeded at the Special and General Terms. Plaintiff appealed to the Court of Appeals. When the caúse was reached for argument on the calendar of that court, Judge Shea sent for plaintiff and his attdrney, Judge Gaynor, and requested an adjournment of the case until the argument of the case of the Union Elevated Railroad Company, then pending in the same court, and involving to some extent the same questions as those in the defendant’s case, but which Judge Sliea thought were more favorably presented in the case of the Union Company. The plaintiff refusing, Shea finally agreed that if the .case would be adjourned the defendant would pay the plaintiff ten per cent of the assessed value of his property in settlement of all the latter’s claims. The plaintiff assented to this. Mr. McCurdy, the defendant’s attorney, was then called in so that he might be informed of the agreement. [75] Judge Gaynor attended the Court of Appeals and adjourned the argument of the appeal. Subsequently the two cases were argued about the same 'time, and in each case the railroad company was successful. (Matter Kings Co. El. R. Co., 112 N. Y. 47; Matter Union El. R. R. Co. of Brooklyn, Id. 61.) The foregoing statement rests on the testimony of the plaintiff alone, except as to the last interview with Judge Shea, in which the plaintiff is corroborated by the evidence of his counsel, Judge Gaynor. Evidence was also given by property owners of their negotiation with Shea and Goodwin concerning consents, and the payment to them of ten per cent of the valuation of their properties. This is the third time this case has been before the court on appeal. (42 N. Y. St. Repr. 621; 91 Hun, 251.) Two previous verdicts for the plaintiff have been set aside. From the opinions ■ delivered on the previous appeals, it appears that the decisions then made proceeded on two grounds: That-the verdict was against the weight of evidence, and that the evidence was insufficient to support the verdict. We should not now disturb the verdict on the first ground, for a third jury has decided the question .of fact in the plaintiff’s favor. (Dorwin v. Westbrook, 11 App. Div. 394.) Nor do we think the verdict is against the weight of evidence as presented on this trial, whatever may have been the case on the earlier trials. Assuming, that the plaintiff’s story that Shea agreed to pay $9,000 for the adjournment and in release of plaintiff’s claims, whether the company obtained a favorable decision or not, was improbable, it was not contradicted,' though it was entirely within the power of the defendant to contradict it if it were false, Mr. McCurdy, who the plaintiff and Judge Gaynor testify was called in to hear a reiteration of the agreement, was the counsel who apjaeared for the defendant on the last trial. He was not called as a witness to controvert the plaintiff’s testimony. It appears that Judge Shea was dead, at the time of the last trial. The counsel for the respondent states that Shea was alive at the time of the first trial, and that then he was not a witness. Of this latter fact we cannot take notice, for it is not in the record. But this much we may assume: Either Judge Shea was ■ not a witness on that trial, or his testimony was not favorable to the defendant, for, if he was a witness, his death rendered his former testimony admissible on the [76] last trial. Whether, the agreement to pay the plaintiff $9,000 .was reasonable or unreasonable, it appears that the defendant made precisely similar agreements with other parties. In the light of these facts, the absence of contradiction, and the fact that the defendant made similar agreements, it is idle to argue that the jury should have discredited the plaintiff. ■ On the contrary, it would have been singular, indeed, if the jury had not believed his story. There is now to be considered whether the plaintiff’s evidence, most favorably, construed, established his cause of action. That there was sufficient consideration for the promise to pay there can be no doubt. There was no proof to, show any authority on the part of the agent who first obtained the consent, to make the agreement with plaintiff to pay him compensation. But the defendant' obtained the consent and has ever since- retained it, producing it upon the trial. Goodwin was informed of the agent’s promise, and ratified and renewed it.. If the agent exceeded his authority, the ■ defendant should have repudiated his action. It could not retain . the fruits of the agent’s acts and at the same time ■ disclaim his authority. It is- not claimed that Judge Shea had power to bind the company by his agreement for the adjournment, simply by virtue of his position as general counsel. It was, therefore, necessary. for the plaintiff to prove his authority. But it was not necessary to .prove it by direct evidence; it could be established by circumstances or by the course of the conduct of the defendant’s business. (The Troy Turnpike & Railroad Company v. M’Chesney, 21 Wend. 296; Peterson v. The Mayor, 17 N. Y. 449; Olcott v. Tioga R. R. Co., 27 id. 546; Beattie v. D., L. & W. R. R. Co., 90 id. 643.) It appeared from the evidence that either as. counsel or in - addition to his duties as counsel, Judge Shea, either alone or in connection with Wendell,-conducted all the negotiations ■ for the property owners’ consents. Wendell sent the plaintiff to Shea as the agent of the company, authorized to act for it in the subject-matter. Other, property owners negotiated with Shea and Goodwin,' and their agreements were fulfilled by the company. When Shea made his agreement with plaintiff, Judge Gaynor insisted on a like agreement being made with him for other clients for whom he appeared-in the same litigation. The company carried out this agreement of Shea as to the parties other than the plaintiff. In our opinion this [77] evidence was sufficient to warrant the court in submitting the question of the authority of Shea and Goodwin to the jury. It must he remembered that the aiithority of these persons and their powers were facts peculiarly within the knowledge of the defendant, and, therefore, slight evidence only on the part of the plaintiff was necessary to call upon the defendant to show the true relation they bore to the company. “ The defendants knowing the truth and omitting to speak, every inference warranted by the evidence should be indulged against them.” (Wylde v. Northern R. R. Co., 53 N. Y. 156.) The judgment and order appealed from should be affirmed, with costs. All concurred. Judgment and order affirmed, with costs.