there was an implied authority. It was therefore the right of the defendants to offer evidence tending to show that there was no implied authority. As has been seen, there could only be an implied authority here, if it be the custom for agents to warrant the value of stocks when he makes a sale of such securities. The defendants attempted to prove that there is no such custom. The trial court rejected this evidence. This was error. The learned trial court, in ruling upon this question, stated that the burden was not upon the defendants to make such proof. But in view of the only possible theory on which the denial of the nonsuit could have been based, namely, that the agent had implied authority to warrant, the duty was on the defendants to offer proof that there was no implied authority. The trial court refused to let the defendants do so, and this was error.

[3] There is no question of ratification here. There can be no ratification by the principal of the acts of the agent, unless the principal has full knowledge of the facts. In this case the defendants had absolutely no knowledge that the agent had given a warranty, such as is alleged in the complaint, or any warranty whatever.

For these reasons, the judgment and order should be reversed, and a new trial granted. All concur.

(165 App. Div. 224)*

KOSTER v. CONEY ISLAND & B. R. CO.

(Supreme Court, Appellate Division, Second Department. December 24, 1914.) 1. STREET RAILROADS (§ 117*)-INJURY TO DRIVER OF VEHICLE-NEGLIGENCE OF MOTORMAN-QUESTION FOR JURY.

Under the evidence, in an action by the driver of a wagon for injuries from a collision with a street car, held, that the question of defendant's negligence was for the jury.

[Ed. Note. For other cases, see Street Railroads, Cent. Dig. §§ 239-257; Dec. Dig. § 117.*]

2. STREET RAILROADS (§ 117*)-COLLISION-NEGLIGENCE-QUESTION for Jury. An error of judgment by a motorman as to the time when he must apply sand and brakes on a rainy day, to avoid a collision, is not negligence as a matter of law.

[Ed. Note. For other cases, see Street Railroads, Cent. Dig. §§ 239257; Dec. Dig. § 117.*]

Appeal from Queens County Court.

Action for injuries by George Koster against the Coney Island & Brooklyn Railroad Company. Judgment for plaintiff, defendant appeals. Reversed.

Argued before JENKS, P. J., and BURR, THOMAS, CARR, and RICH, JJ.

D. A. Marsh, of Brooklyn, for appellant.

Martin T. Manton, of New York City (Vine H. Smith, of New York City, on the brief), for respondent.

RICH, J. This appeal is from a judgment of the County Court of Queens County in an action for personal injuries. The accident was

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

the result of a collision between a delivery wagon and one of defendant's trolley cars at a street crossing.

The learned trial court charged the jury that in the operation of its car the defendant was negligent as matter of law, and that if they found the plaintiff free from contributory negligence, and that he was actually injured as the result of the collision, he was entitled to a verdict. To this portion of the charge an exception was taken, whereupon counsel for the plaintiff informed the court that he was willing to have the jury determine as a question of fact whether or not the motorman was careless in the operation of the car, and the court responded:

"When I charge what the law is, I have to charge what I understand is the law, and I will stand on it."

The exception to this charge presents the only serious question before the court upon this appeal.

.

[1] The accident occurred between 3 and 4 o'clock in the morning of July 18, 1913. It was wet and misty, and the rails were slippery. It was contended by the plaintiff that the failure to stop the car before it collided with the wagon in which plaintiff was riding was due to the inexperience of one of defendant's conductors, who was permitted to operate it, and the testimony of two witnesses who were passengers on the car was to the effect that at the time of the accident a conductor was running the car. This fact was denied by the conductor and motorman, and by a conductor of defendant not employed on the car, but who happened to be riding with the motorman on the front platform. If the jury believed the testimony of the motorman and two conductors, they would have been justified in finding that the car was being operated at the time of the collision by an experienced and regular motorman, who, in the middle of the block, about 100 feet from the corner, where the downgrade commenced, shut off the power, and by so doing reduced the speed of the car to 4 or 5 miles an hour; that he was vigilant and attentive, and saw the plaintiff's rig as soon as it came into his line of vision, at which time the car was about 25 feet from the building line of the intersecting street, and, immediately observing the possibility of a collision, used all the means at his command to stop the car, in which effort the employé riding on the front platform assisted by sanding the rails; that when the brake was applied the car wheels skidded because of the wetness of the rails, and the motorman, then realizing that he could not stop the car in time to avoid a collision, sounded his gong and shouted to the plaintiff to inform him that he could not stop the car, to which he paid no attention; that the horse was then approaching the crossing on a trot, which gait he kept until he reached and was upon the track, when the fender of the car struck his legs and he was thrown sideways into it; that the motorman had physical control of his car, and could and would have avoided the accident, had the rails been dry, but in consequence of being wet and slippery neither the brakes nor sand stopped it in time, and that the slippery condition of the rails was the proximate cause of the accident.

[2] The precise point on the downgrade at which the power should have been shut off and brakes applied involved the exercise of judgment on the part of the motorman, and if, in determining such question, he made the mistake of not taking into consideration the wet and slippery condition of the rails, it was a mistaken exercise of judgment, not necessarily constituting negligence or establishing defendant's liability. Lewis v. Long Island R. R. Co., 162 N. Y. 52, 56 N. E. 548; Stabenau v. Atlantic Avenue R. R. Co., 155 N. Y. 511, 50 N. E. 277, 63 Am. St. Rep. 698; Bittner v. Crosstown Railway Co., 153 N. Y. 76, 46 N. E. 1044, 60 Am. St. Rep. 588. It was for the jury to say, under the evidence, whether in the operation of its car the defendant's motorman was negligent. Different inferences could reasonably be drawn from the evidence as to whether the motorman had exercised that degree of care which the law required of a reasonably prudent and careful person discharging the duties of a motorman operating a trolley car, which made the question of defendant's negligence one of fact for the jury, instead of one of law to be determined by the court. Stackus v. N. Y. C. & H. R. R. R. Co., 79 N. Y. 464; Salter v. Utica & Black River R. R. Co., 88 N. Y. 42, 51; Sias v. Rochester Ry. Co., 169 N. Y. 118-126, 62 N. E. 132, 56 L. R. A. 850; Weil v. D. D., E. B. & B. R. R. Co., 119 N. Y. 147, 153, 23 N. E. 487.

The judgment and order of the County Court of Queens County must be reversed, and a new trial ordered; costs to abide the event.

JENKS, P. J., and BURR and THOMAS, JJ., concur. CARR, J., not voting.

PORTER v. KING.

(Supreme Court, Appellate Term, First Department. January 7, 1915.) ATTORNEY AND CLIENT (§ 166*)-SERVICES EVIDENCE.

Evidence held to show that a client impliedly promised to pay an attorney the reasonable value of services rendered in the collection of claims.

[Ed. Note. For other cases, see Attorney and Client, Cent. Dig. §§ 368372; Dec. Dig. § 166.*]

Appeal from Municipal Court, Borough of Manhattan, Ninth District.

Action by Louis H. Porter against Henry A. King. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. Reversed, and new trial granted.

Argued December term, 1914, before GUY, BIJUR, and PAGE, JJ. F. Carroll Taylor, of New York City, for appellant.

PAGE, J. This is an action brought by an attorney to recover the reasonable value of services performed by him at the request of the defendant. The defendant in his answer denies that the services were performed at his request, and as a separate defense alleges that he

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

placed certain claims which he held against Charles G. Bishop and George W. Bishop in the hands of the North American Mercantile Collection Agency for collection upon an agreement to pay 10 per cent. of the amount collected, and that the agency notified him that it was unable to collect the claim, and he was then introduced to the plaintiff as the head of the law department of the agency, who agreed to bring suit if the defendant would pay a deposit of $15 to cover disbursements, and the defendant further agreed to pay a fee of 10 per cent. of the amount collected.

At the trial it was conceded that the services, as shown in the plaintiff's bill of particulars and as testified to by the plaintiff's witness Dodge, an attorney associated with the plaintiff, were performed for the defendant by the plaintiff's office force. They consisted principally of bringing two actions in the Supreme Court of Kings County upon a number of promissory notes made and indorsed by Charles G. Bishop and George W. Bishop. One of the actions was stayed because of the bankruptcy of Charles G. Bishop, but a claim was filed in bankruptcy, and an examination of the bankrupt thereon was made by the plaintiff's representative, Mr. Dodge, which resulted in the discovery of no assets. The action against George W. Bishop was continued, judgment rendered therein by default in favor of Henry A. King, this defendant, for over $1,200, and an order obtained for the examination of George W. Bishop in supplementary proceedings, which order was likewise stayed because of the bankruptcy of George W. Bishop. George W. Bishop was also examined in the bankruptcy court, and no assets were discovered. The plaintiff's witnesses testified that the defendant came to the plaintiff's office and authorized Mr. Dodge to commence the actions, and subsequently authorized the other proceedings, and that no mention was made of the amount to be charged for the work, except that the defendant was requested to pay a retainer of $15 in advance to cover disbursements, which he paid.

The defendant offered no evidence to support an agreement by the plaintiff to bring the actions for a contingent fee of 10 per cent. He testified that he took the claims to Mr. Stafford, the manager of the collection agency, and the agency could not collect them, and Mr. Stafford took him to the plaintiff's office, and said he would introduce the defendant to some one who would take the case, and that he then talked with the plaintiff and Mr. Dodge, who agreed to bring suit against the two Bishops to recover $1,085. He stated:

"They told me they would bring suit against the two Bishops and that I should pay them $15. That was all that was said."

The defendant's main evidence was directed towards showing that the plaintiff was principal stockholder and president of the collection agency, and that the defendant in some vague way thought that the agency, and not he, was employing the attorney; but, since it appears from his own testimony that the agency abandoned the claim and introduced him to the plaintiff as attorney, the evidence is not very material.

I can discover no evidence in the record to support a finding that the agency was employing the plaintiff to bring the actions, or that the de

fendant had any reasonable ground for so supposing. The defendant's testimony concerning the payment of $15 to the plaintiff and the conversation leading to it do not show an agreement by the plaintiff to accept that sum in full. It is not disputed that the actions were brought and all the proceedings had with the knowledge and consent of the defendant, and the circumstances, I think, were sufficient to justify an implied promise that the plaintiff would pay what the services were reasonably worth.

I am of the opinion that the judgment should be reversed, and a new trial granted, with costs to the appellant to abide the event. All

concur.

(165 App. Div. 362)

SALVIN V. SALVIN et al. (No. 6601.)

(Supreme Court, Appellate Division, First Department. December 31, 1914.) INSURANCE (§ 585*)-RIGHT TO PROCEEDS-DESIGNATION OF BENEFICIARY.

Where an insurance policy provided for payment to "B., the wife of the insured," or in the event of her prior death to the executors or administrators of the insured, B. did not lose her rights as beneficiary by obtaining a divorce from the insured; the words "the wife of the insured" being merely descriptive, and not importing an implied condition that she should continue to be his wife up to the time of his death.

[Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 1461-1468; Dec. Dig. § 585.*]

Appeal from Special Term, New York County.

Action by Harry Salvin, as administrator of Sidney I. Salvin, deceased, against Bertha Salvin and the Equitable Life Assurance Society of the United States. The defendant Bertha Salvin demurred to the complaint, and appeals from an order denying her motion for judgment on the pleadings. Reversed, and motion granted.

Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGHLIN, DOWLING, and HOTCHKISS, JJ.

Otto Horwitz, of New York City, for appellant.
Percy L. Housel, of Riverhead, for respondent.

DOWLING, J. The complaint sets forth that the defendant Equitable Life Assurance Society of the United States, on the application of Sidney I. Salvin, and in consideration of the payment to it by him of the sum of $78.83, and of a like annual payment thereafter, assured the life of the said Salvin for the sum of $1,500 for a term of 20 years from the date of said policy, January 15, 1902, and promised to pay the said sum on the death of the said Sidney "to the person therein described as Bertha, the wife of the insured, to wit, the wife of the said Sidney I. Salvin, or, in the event of her prior death, to the executors, administrators, or assigns of the said Sidney I. Salvin"; that at the time of the issuance of the said policy Bertha Salvin was the wife of the said Sidney I. Salvin, but was not such at the time of his decease, having, on February 21, 1913, obtained a decree of divorce from him in the New York Supreme Court; that on June 10, 1914, Sidney I.

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes