Opinion of the Court, per MARTIN, J. [Vol. 152. 41 N. Y. 619; Kirby v. Hewitt, 26 Barb. 607; Robinson v. Brennan, 90 N. Y. 208.) In Robinson v. Brennan the plaintiff in another action recovered a judgment, and with the knowledge of his attorney assigned it to the plaintiff Robinson, which was also known to the sheriff to whom executions had been issued upon the judg ments so assigned. Afterwards, the attorney for the plaintiff in the first judgment gave directions to the sheriff as to the manner in which he should apply the money in his hands arising from a sale of the property of the defendant on such executions, and this court held that, if the judgments had not been assigned, the attorney in the original action would have had authority to give directions to the sheriff, which would have been binding upon the plaintiff; but when the judgments were assigned to Robinson, the plaintiff in the former judgment ceased to have any interest therein, and the authority of the attorney, who knew of such assignment, was thereby in fact revoked. Moreover, a careful study of the evidence fails to disclose that the defendant retained the plaintiffs to perform the services in controversy by any express agreement, although the correspondence between the parties shows that the defendant was interested in having the patents owned by the company defended, and in securing for the company such improvements as were made by him in regard to his inventions. It can scarcely be said that the evidence proves anything more. It is, at least, consistent with the theory that the plaintiffs' services were rendered for the corporation, and mainly inconsistent with the plaintiffs' claim. In December, 1889, the plaintiffs wrote to Lown that they realized the importance of patenting the various plans that had been submitted to them; that some were likely to be of considerable value, but that they could say frankly that, in connection with their investment of twenty thousand dollars (in the stock of the corporation), the large amount they had paid out in the way of fees, etc., for the company, and the considerable delay in the payment of outstanding bills, they were in N. Y. Rep.] Opinion of the Court, per MARTIN, J. such a condition that they could not advance any more money without either borrowing or disposing of securities, which they did not wish to do, and then added: "We know the condition of the affairs of the company and have not very vigorously pressed for payment, but the failure to make this payment has subjected us to considerable inconvenience. The company has not offered a cent's worth of advantages to us in any way, and we feel perfectly justified in now urging an immediate payment of our bill. We think we have waited as long as, or longer than, the utmost courtesy and consideration demand." Again, on December 28th, they wrote Lown: "And if the Co. desire our services further, they can only be had upon a full settlement and arrangement for prompt payments hereafter." On the fifth of June they wrote the defendant about an account not relating to the business of the company, as follows: "We send the bill in this case to you, as the matter has no connection with the company in any way." The foregoing, although a very slight portion of the correspondence between the plaintiffs and Lown and the plaintiffs and the defendant, illustrates its character and shows quite plainly that the relation of attorney and client as to the matters in controversy did not exist between the plaintiffs and the defendant, but that the corporation was understood by the parties to be the plaintiffs' client in that respect. Again, on the seventh of October, 1889, the plaintiffs wrote to Lown inclosing a bill which was in form against the defendant for all their services up to that date in respect to the patents and interferences, in which they stated: "We presume that the charges for the interference should be made against the Co., but we have had no authority to do so. Please advise us whether the Co. assumes the charges for the applications to be made hereafter, as well as for the interference business." On the ninth of the same month the defendant wrote the plaintiffs" Mr. Lown has shown me the account you have Opinion of the Court, per MARTIN, J. [Vol. 152. Now, I find you have my rendered to the B. S. & I. Co. personal account mixed up with it. separate, you will please make out new accounts one confined wholly to items concerning the B. S. & I. Co., and the other, those appertaining to my matters. In my personal acct. there should be included all expenses of all applications for my patent in foreign countries, the churn device, the button hook, cost of examining R. R. tie, etc. If you will send to me personally my account so made out, I will remit amt. due." On the eleventh the plaintiffs wrote to Lown, stating, among other things: "We also inclose to Mr. Bookwalter his accounts, separated as required. As regards future charges, we are willing to make them against the company, but we must have instruction to that effect from the company itself." The next day Lown replied to this letter, stating: “I handed Mr. B. the acct's. The smaller one he took to the other office, and I presume will send you a check to-day." The other account was left at the office of the company. On the sixteenth of that month, the defendant wrote the plaintiffs: "Find enclosed dft. for $895 in full of account rendered 10th inst." On the seventeenth the plaintiffs returned the bill to Bookwalter, receipted, with a letter, stating: "Your favor enclosing check to pay the enclosed receipted bill at hand, for which accept our thanks," and nothing whatever was said about the bill which related to services for the corporation. It seems almost impossible to read the evidence and correspondence between the parties in relation to this subject, of which the foregoing is a small part, without reaching the conclusion that the proof so clearly preponderated in favor of a conclusion contrary to that reached by the referee as to render it obvious that he erred in his conclusions. We think the General Term was fully warranted in holding that the decision of the referee was against the weight of evidence, and in reversing the judgment upon that ground. We are also of the opinion that the learned referee erred N. Y. Rep.] Opinion of the Court, per MARTIN, J. in finding, as the record indicates he did, that Lown was the agent of the defendant. We have examined this case to find evidence to show that the defendant appointed Lown his agent, recognized him as such, or ratified his acts, but in vain. Moreover, Lown testified that he was never the agent of the defendant. While it is true that there is some evidence that tends to show that the plaintiffs may have assumed that Lown was acting for the defendant, yet it also shows that the services which they performed were not for the defendant, but for the company alone, and that the letters of Lown generally related only to matters of the company. While in the great volume of correspondence which passed between the plaintiffs and Lown there may perhaps be found expressions from which it might be inferred that Lown was the defendant's agent, still, as there was no evidence showing that any of these statements were made by or known to the defendant, the evidence was insufficient to establish any such agency, as agency cannot be established by the declaration of an agent or a third person, or by his acts, which are not shown to have come to the knowledge of his supposed principal. Nor do we find in the record any such facts as would fairly justify an implication on the part of the plaintiffs that Lown was the agent of the defendant. Although the plaintiffs testified that they understood that such was the fact, they also testified that they merely inferred it, without disclosing any grounds or circumstances from which such an inference could be properly drawn. The claimed admission of the defendant, that he had given Lown instructions to do certain things in relation to the business of the company of which he was a director, would not justify such an inference. Without any further discussion of the evidence, it is clear that the General Term was justified in holding that it was insufficient to show that Lown was the agent of the defendant, or at least in holding that the preponderance of evidence to the effect that he was not such agent was so great as to justify that court in reversing the judgment upon the ground that it was against the weight of evidence. The discussion of this case might be prolonged, as there are several other interesting and important questions that were presented by counsel; but, as none of them would in any event change the result we have already reached, and as it is manifest that the order of the General Term must be affirmed, no further examination of the case is deemed necessary. The order should be affirmed and judgment absolute ordered against the plaintiffs. All concur. Ordered accordingly. ELLA D. SAND, Appellant, v. HENRIETTA CHURCH et al., Respondents. 1. EJECTMENT AGAINST TENANT OF LIFE TENANT-EFFECT OF RE-ENTRY. A judgment in ejectment against one who had no interest in the premises, except as a tenant under a life tenant when the action was commenced, and who had moved from the premises before judgment was rendered, is without legal force or effect, and he is not dispossessed by the writ of assistance or execution issued upon the judgment, nor is the plaintiff in any legal sense placed in possession by virtue thereof, so as to hold adversely to a remainderman while the life tenancy continues. 2. EJECTMENT AGAINST LIFE TENANT-EFFECT ON REMAINDERMAN. Possession acquired under a judgment in ejectment against a life tenant has no effect on the rights of a remainderman. 3. TENANT'S RIGHT TO REDEEM AFTER EJECTMENT LIMITATIONS. A remainderman who was not a party to an ejectment brought by a landlord against the life tenant to recover the possession of the property for non-payment of rent is not within the six months' Statute of Limitations (2 Rev. St. 506, § 33, 34), which limits the tenant's right to redeem, by paying all rent in arrear, with costs, to six months after the landlord has been placed in possession under the ejectment suit. 4. NATURE OF ACTION TO REDEEM FROM EJECTMENT. An action by a remainderman to redeem after a default judgment in ejectment by a landlord against a life tenant for non-payment of rent, which is within the spirit and meaning of section 1680 of the Code of Civil Procedure, does not sound in tort, but is equitable in its nature, and can be sustained without any proof of fraud. Sand v. Church, 82 Hun, 615, reversed. (Argued February 3, 1897; decided March 2, 1897.) |