Opinion
May Term, 1902.
Charles F. Brown, for the appellant.
Charles L. Guy, for the respondent.
Action to recover damages sustained by the widow and next of kin of William H. Ludeman, deceased, resulting from his death, alleged to have been caused by the defendant's negligence.
There have been two trials. At the close of the first trial a verdict was rendered in favor of the plaintiff, which was set aside and a new trial granted by the learned justice presiding, upon the ground that it was against the weight of evidence, and on appeal to this court the order was affirmed. ( Ludeman v. Third Avenue R.R. Co., 30 App. Div. 520.) On the second trial a verdict was again rendered in favor of the plaintiff and from the judgment entered thereon, and an order denying a motion for a new trial, this appeal is taken. The judgment is attacked upon two grounds: (1) That the trial court erred in admitting in evidence the deposition of the intestate taken in an action brought by him against this defendant, and (2) that it was against the weight of evidence.
First, the deposition which was read in evidence was taken in pursuance of a stipulation signed by the attorneys for the respective parties in an action brought by the intestate against this same defendant to recover damages for personal injuries alleged to have been sustained by the plaintiff on the ground of defendant's negligence, and which injuries it is conceded in this action finally resulted in his death. The stipulation was as follows:
-------------------------------------- "WILLIAM H. LUDEMAN | | vs. | | THIRD AVENUE RAILROAD COMPANY. | | "In the Matter of the Perpetuation of | the Testimony of WILLIAM H. | LUDEMAN, for use on the Trial of an Action to be Brought by the | Executor or Administrator of the | said WILLIAM H. LUDEMAN on | behalf of the Widow or next of kin | of the said WILLIAM H. LUDEMAN, | in the event of his Death. | --------------------------------------
"It is stipulated by and between the attorneys for the parties hereto that the deposition of the above-named William H. Ludeman shall be taken at his residence No. 126 West 129th street, in the City of New York, on the 12th day of June, 1897, at three o'clock in the afternoon of said day and that plaintiff's attorney shall examine the said plaintiff orally and the attorneys for the defendant shall cross-examine him orally and that such examination and cross-examination be reduced to writing and signed and sworn to by the said William H. Ludeman before a Notary Public in the county of New York and that the deposition so taken may be read on the trial of the above-entitled action now pending, or in the event of the death of the said William H. Ludeman before the trial of the above-entitled action now pending, on the trial of any action instituted by the legal representatives of the said William H. Ludeman against the said Third Avenue Railroad Company, pursuant to sections 1902, 1903, 1904 and 1905 of the Code of Civil Procedure. And it is further stipulated that all objections to the testimony taken on such examination be and the same hereby are reserved until the trial of either of such actions."
Subsequent to the taking of the depositions, Ludeman died and thereafter this action was brought by his administratrix, and upon plaintiff's attorney attempting to read the deposition at the second trial (it does not appear that any objection was made to it on the first trial) the defendant's attorney objected to the reading of the same, on the ground that the stipulation was made without authority and for that reason it was not binding upon the defendant. The objection was overruled and an exception taken.
We are of the opinion that the objection was properly overruled. It is true, when the deposition was taken, the present cause of action had not then accrued, but an action was pending against the defendant to recover damages for the same negligent act upon or for which a recovery is here sought. In that action it seems that the defendant deemed it of sufficient importance, in order to obtain in advance of the trial what the plaintiff claimed and the theory upon which a recovery was sought, to make the stipulation which it did. It cannot be denied that this was of advantage to the defendant, whether the plaintiff in that action lived or, in case of his death, an action was brought by his representatives. It put the defendant in possession of substantially all that the plaintiff claimed. It was notified, in advance, of just what it might expect to meet upon the trial. This was a sufficient consideration for the stipulation and we think the attorney had the power to make it. He thereby obtained something for his client in the preparation for the trial of that action which he could not have obtained in any other way, and having obtained this advantage, the client could not thereafter repudiate his act. An attorney in an action has implied authority by virtue of his retainer to do whatever in his judgment may be necessary to advance his client's interest, either in the prosecution or defense of the action, and to that end he can agree that the deposition of the opposing party may be taken, and if he dies before trial, that deposition can be read upon another trial brought by his representatives to recover for substantially the same cause of action. It is important, in the practice of law, at least, that good faith and fair dealing among attorneys should not only be upheld, but their agreements enforced. The defendant, therefore, having obtained the benefit of the examination of the intestate, could not thereafter legally object (in view of the stipulation which clearly contemplated, both in letter and spirit, the subsequent use to which the deposition was put) to the reading of the deposition in an action brought by his representatives, and especially in view of the fact that it was admitted by the defendant upon the trial that the intestate's death "was the direct result of injuries received," to recover for which this action was brought.
Second. The verdict was not against the weight of evidence. The intestate, at the time he was injured, was a passenger on one of defendant's cars. The real question litigated upon the trial was whether he alighted from the car while it was in motion, or whether the car was suddenly started while he was in the act of getting off. The deposition of the plaintiff's intestate tended to establish that the intestate signified his intention to get off the car at the intersection of One Hundred and Twenty-fifth street and Park avenue, and that the conductor, in compliance with his request, gave the signal to the motorman who thereupon stopped the car; that while he was in the act of stepping from the car to the street the former was suddenly started, he was dragged some distance, and finally thrown to the street and very seriously injured. As already indicated, it was conceded that the injuries which he then received resulted in his death. The statement of the intestate as to how he was injured was corroborated by two disinterested witnesses, both of whom agreed with him that the car was suddenly started after the intestate commenced to step from it to the street. In opposition to this testimony several witnesses were produced on the part of the defendant, all of whom testified, in substance, that the car did not stop, but that the deceased was injured by stepping from it while it was in motion. Testimony was also given by several witnesses to the effect that the deceased, immediately after he was injured, stated that he had attempted to jump from the car while it was in motion, in order to catch a train, and that his injuries were not caused by the fault of any of the servants of the defendant. But as to testimony concerning these admissions, we fully concur in the view expressed by this court on the former appeal. It was there said: "Great importance is not to be attached to statements made in answer to questions immediately following such an occurrence as happened in this case, when from pain and shock and confusion of mind a sufferer can scarcely be held responsible for all he says." It is true the defendant had the larger number of witnesses to establish its version as to how the accident occurred. But this is not controlling. Taking into consideration all of the circumstances, the credibility of the witnesses was for the jury, and it having reached the conclusion that the testimony given by the plaintiff's witnesses was true, its verdict was justified and ought not to be disturbed. In this connection it should also be borne in mind that two juries have reached the same conclusion, and this fact must be considered in determining whether there ought to be another trial upon the facts. ( Barrett v. N.Y.C. H.R.R.R. Co., 45 App. Div. 225; Dorwin v. Westbrook, 11 id. 394; Pennington v. Townsend, 7 Wend. 278.)
We are of the opinion that the verdict was justified by the evidence, and that there are no errors which call for a reversal of the judgment.
The judgment and order appealed from, therefore, must be affirmed, with costs.
VAN BRUNT, P.J., PATTERSON, O'BRIEN and LAUGHLIN, JJ., concurred.
Judgment and order affirmed, with costs.