Summary
In Krauss v. Krauss, 127 App. Div. 140 [111 N.Y. Supp. 788, 789], the appellate division held that the statutory power conferred upon the trial court to annul, vary or modify an order for the payment of alimony did not carry jurisdiction to deprive one of that portion of such an award which was due and payable but that, as to such portion, a vested right was created which might be enforced the same as any final judgment.
Summary of this case from Bruton v. TearleOpinion
June 18, 1908.
Charles Tolleris, for the appellant.
S.J. Rosenblum, for the respondents.
The plaintiff brings this action against the defendants, attorneys at law, to collect a balance of $66.19 alleged to have been collected by the defendants of one Friedman of Scranton, Penn., in behalf of the plaintiff. While there was a conflict of evidence upon the issues in the action, the plaintiff relies for reversal upon alleged errors in the charge of the learned court, and in the admission and rejection of evidence. Briefly, the plaintiff placed a claim for $161.69 in the hands of the defendants for collection. The debtor lived in Scranton, Penn., and the evidence tends to show, and the jury have so found by their verdict, that the defendants on receiving this claim told the plaintiff that they would place the same in the hands of one Okell, an attorney in Scranton, for collection, and that the plaintiff not only approved of this, but that he subsequently ratified the action of the defendants in this employment of Okell. It appears that Okell collected the claim, paying over a part of the same to the defendants, and that Okell subsequently departed from Scranton, failing to make good the remainder of the claim. The plaintiff, as we may gather from the evidence which convinced the jury, employed the defendants to follow up this claim, and to secure the entire amount, saying that he did not care about the money; that he wanted to enforce the claim, and the counterclaim of the defendants is based upon the services rendered in an effort to collect this claim from Friedman and to chase down Okell. The claim for services and disbursements was made at $230, the jury having limited the recovery to $100. The plaintiff appeals.
The first point of the appellant relates to alleged errors in the charge of the learned court below. Plaintiff's counsel asked the court to charge that Okell was the agent of the defendant Rosenblum respecting the collection of this claim. The court declined to charge this request and charged "that Okell, the lawyer of Scranton, Pennsylvania, was really the agent of Lacher, because Rosenblum, based upon the testimony here, if you so believe it, was the agent or attorney of Lacher, and he, as such attorney or agent, could, as a matter of law, delegate his authority and power to somebody else, namely, Okell, of Scranton, Pennsylvania." This is clearly not an accurate statement of the law; Rosenblum, as the agent or attorney of Lacher, could not substitute Okell in such a manner as to make the latter the agent of Lacher, so that Lacher would be obliged to look to Okell for the proceeds of the collection, unless Lacher consented to the arrangement. Under the evidence it was an open question whether Lacher had authorized Rosenblum to turn the claim over to Okell for collection, and we are of the opinion that the court erred in volunteering to charge as it did. The court properly refused the plaintiff's request, but when he went beyond that and charged as a matter of law that Okell was the agent of the plaintiff, upon the theory that Rosenblum, by reason of his agency, had the authority to make a new agent for Lacher, there was error which calls for a reversal of the judgment. It is probably true that the court intended to charge that under the evidence, if the jury believed it, Rosenblum was authorized to employ Okell to collect this claim — to make Okell the plaintiff's agent for the purposes of the collection — but that is not the charge as it went to the jury, and the plaintiff having duly excepted to the charge as made, he is entitled to a reversal of the judgment and to a new trial.
The judgment should be reversed, with costs.
JENKS, HOOKER, GAYNOR and MILLER, JJ., concurred.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.