Meislahn v. Irving National Bank

Laughlin, J.: There being no certificate that the case contains all the evidence we must presume that sufficient evidence was offered on behalf of the plaintiff to warrant the verdict, and we are not at liberty to review the facts. (Gorham Manufacturing Company v. Seale, 3 App. Div. 515, 517; Gregory v. Clark, 53 id. 74; Flood v. Cain, 78 Hun, 378.) The only questions open to review on this appeal, therefore, are the exceptions taken to the admission or rejection of evidence and to the charge or refusals to charge. The first legal error assigned is the admission of testimony as to the salary paid by the defendant to plaintiff’s predecessor as check clerk. The duties of this position -consisted of clerical work and in supervising the work of subordinate -clerks. It was routine work of a ministerial character. There was no delegation of discretion or judgment. This salary was fixed and paid by defendant for the identical duties and services performed by plaintiff. This testimony was not received as controlling evidence .upon the question of the value of plaintiff’s services but merely as [235] bearing thereon. Its force and effect were carefully limited by the trial judge in his charge to the jury. The jury rendered a verdict for the amount which plaintiff would have been entitled to if his salary had been fixed at $1,200 per annum and, undoubtedly, that is the basis upon which the verdict' rests. ■ It appears, therefore, that this defendant is in no position to complain, unless this evidence was clearly inadmissible for any purpose. This evidence is not subject to the objection that it was res im,ter alios acta. Bouvier says: “ When the party against whom such acts are offered in evidence was privy to the act, the objection ceases.” (2 Bouv. Law Diet. [Rawle’s Rev.] 898.) In stating the limitations upon this maxim, Starkie (Stark. Ev. [8th Am. ed.] *85) says: “ A man’s own acts, conduct and declarations, where voluntary, are always admissible in evidence again'st him.” Defendant was permitted to- show when plaintiff’s predecessor entered its employ and the different salaries he received from time to time during a period of upwards of thirty years’ employment. No •evidence offered by it in explanation of the payment of this salary to plaintiff’s predecessor was excluded. At the close of the charge an exception appears to have been taken by defendant’s counsel to the court’s charging the plaintiff’s last request, but the record contains no request for a charge on the part of plaintiff. The only other exception to the charge by the ■defendant is to the statement of the court, in the body of the charge, where the court instructed the jury that, in fixing plaintiff’s compensation, they were not bound by the salary paid to his predecessor, but should award him what his services were fairly and .reasonably worth. Under the circumstances we think this evidence was competent, and neither the exception thereto nor to the charge on that subject was well taken. The testimony as to the conversations between plaintiff and defendant’s cashier was received under objection and exception as incompetent and not binding upon the bank. The point is made upon this appeal that the cashier had no authority 'to contract on behalf of defendant for an increase of plaintiff’s salary or for extra •compensation. It may well be, in view of the condition of the record, that all of the evidence relating to the authority of the cashier has not been printed. The cashier, however, was an exeeu [236] ti ve officer of the bank and represented it in all its business dealings .with plaintiff. He was clothed with apparent authority to employ clerks. In the absence of the salary being fixed by the executive board, the clerks so employed would be entitled to recover what their services would reasonably be worth. During the thirteen months in question no salary appears to have been fixed for this position. No evidence was offered of any limitation on the authority of the cashier in this regard, excepting that it was shown that the salaries were arranged from time to time by the advisory committee of the board of directors. The cashier presumably had authority to make these representations to induce plaintiff to remain in the employ of the bank. (Chemical National Bank v. Kohner, 85 N. Y. 189; Lee v. Pittsburgh Coal & Mining Co., 56 How. Pr. 373 ; affd., 75 N. Y. 601; Wilson v. Kings Co. E. R. R. Co., 114 id. 487; Cunningham, v. Massena Springs & F. C. R. R. Co., 63 Hun, 439 ; affd., 138 N. Y. 614;. Howell v. Joseph Edwards Dredging Co., 36 N. Y. St. Repr. 803; affd., 129 N. Y. 625.) All of the conversations with the cashier, excepting the first on May 24, 1898, appear by the record to have been given in response to proper questions called therefor before defendant’s counsel objected. The exceptions are not to the reception of the evidence, but 'to the refusal of the court to grant defendant’s motion to strike it out. The court was not requested to instruct the jury that they should not consider any of this evidence. "When incompetent evidence has been received without objection, the court may, in its discretion, deny a motion to strike out such evidence, and the remedy of the party against whom the incompetent evidence.is received is to request the court to instruct the jury not to consider it. (Woolsey v. Trustees of Ellenville, 155 N. Y. 573 ; Darling v. Klock, 33 App. Div. 270 ; affd., 165 N. Y. 623; Westervelt v. Burns, 27 Misc. Rep. 781.) The. representations made and assurances given by defendant’s cashier, which were relied on by plaintiff, were also competent to relieve him from the consequences of having signed the receipts in full. Unexplained, the jury might infer that he accepted the salary at the rate of $700 per annum without any intention at that time of making any further claim against the "bank. These receipts were prima facie evidence and open to rebuttal. (Ryan v. Ward, [237] 48 N. Y. 204; Mosel v. Frank Brewing Company, 2 App. Div. 93; Greer v. Peoples Tel. Co., 50 N. Y. Super. Ct. 110.) Another exception, concerning which no point is made by the appellant, is deemed worthy of consideration. It relates to the last interview between the plaintiff and the cashier as narrated in the statement of facts. It appears that after plaintiff received the notice on June 30, 1899, to the effect that his salary would be $900 per annum, commencing on the following day, he went to the cashier, and the record shows what occurred at that time, as follows : “ Q. What did you say to him ? A. I said, £ You remember, Mr. Dennison, before I took charge of that desk you said that everything would be made satisfactory the first of the year.’ He said, ‘ I did, and it ought to have been done, too, Meislahn.’ Mr. Fox: I object to that, and move that it be stricken out, what Mr. Dennison said and what ought to have been done is a mere expression of his own mind. Motion denied ; exception. Q. Did he ask you to remain in the bank ? A. Yes, sir. Mr. Fox: I object to that as incompetent. Q. As chief clerk? A. Yes, sir. The Court: Objection overruled; exception.” It will be observed that while the question did not directly call for the answer of the cashier, the motion to strike out the evidence was not made upon the ground that it was not responsive. Nor did the motion draw the attention of the court to the objection that the cashier’s answer, in part at least, was a declaration as to what occurred at a previous interview. It will be remembered that plaintiff had not at this time severed his connection with the bank. This was an interview between him and his superior officer, who had promoted him to this position and under -whom he had discharged .its duties for thirteen months. The conversation was occasioned by the letter which he had that day received from the cashier fixing his salary for the future and indicating that he was not to receive any further compensation for past services. This was the first definite action on the part of the bank concerning the salary which he was to receive as check clerk. The fair inference was that the action of the bank at this time was an attempted fulfillment of the agreement made with him by the cashier at the time of his promotion. It was not, therefore, a past transaction but a continuation of the transaction begun at the time of his promotion. It was a current [238] matter then pending,'upon which the cashier was called upon in the performance of his duties-to speak for the defendant. The case is the same as if the cashier had stated to plaintiff verbally what was communicated in the letter, and the plaintiff had then made a reply calling out this declaration from him. The bank had received the benefit of plaintiff’s services through his employment by the cashier and presumably authorized the cashier to represent -it in communicating with plaintiff verbally or in writing its determination with reference to his salary. Being thus authorized by the defendant his declarations made to plaintiff were admissible against the bank. (Scott v. Middletown, etc., R. R. Co., 86 N. Y. 200 ; Wild v. New York & Austin Silver Mining Co., 59 id. 644; Wilson v. Kings Co. E. R. R. Co., supra; Graham v. Schmidt, 1 Sandf. 74; Howell v. Joseph Edwards Dredging Co., supra; Lee v. Pittsburgh Coal & Mining Co., supra.) The jury were justified in finding that plaintiff remained in the employ of the defendant in the expectation that it would perform the agreement of its cashier fixing a salary that would be satisfactory to him. No salary having been fixed during these thirteen months and the salary fixed at the expiration of that period not having been satisfactory to him, he was at liberty to decline to remain longer in the employ of defendant and to recover what his past services were reasonably worth. ( Wilson v. Kings Co. E. R. R. Co., supra.) No other exception requires consideration. The judgment and order should be affirmed, with costs. O’Brien and Hatch, JJ., concurred ; Patterson J concurred in result; Ingraham, J., dissented.