
    Albert Meislahn, Jr., Respondent, v. Irving National Bank, Appellant.
    
      Oase, not certified to contain all the evidence — remedy where incompetent evidence has been admitted without objection—action by a bank clerk to recover the value of his services — competency of proof as to the salary paid to his predecessor and as to conversations with the cashier—explanation of his having signed receipts in full—his right to resign.-
    
    "Where the case on an appeal from a judgment entered upon a verdict in favor of the plaintiff, and from an order denying a motion for a new trial made upon the minutes, embraces no certificate that it contains all the evidence, the court must presume that sufficient evidence was offered ón behalf of the plaintiff to warrant the verdict and is not at liberty to review the facts.
    When incompetent evidence has been received without objeetion, 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.
    In an action to recover on quantum meruit the value of services rendered by the plaintiff as check clerk in the defendant bank, the duties of which position were of a ministerial character involving no delegation of discretion or judgment, evidence of the amount of salary received by the plaintiff’s predecessor, who had been in the employ of the bank for about thirty years, is competent as bearing upon the value of the plaintiff’s services, although not controlling upon that point.
    ‘Testimony as to conversations between the plaintiff and the bank cashier, who originally employed the plaintiff and represented the bank in all its business dealings with the plaintiff, in which the cashier assured the plaintiff when he was promoted, from the position of assistant check clerk, to that of check ■clerk, that the salary would be made satisfactory, is competent against the bank where no evidence is offered of any limitation on the authority of the cashier in this respect, excepting that it was shown that the salaries of the bank employees were arranged from time to time by the advisory committee of the board of directors.
    '.Such representations made by the cashier to the plaintiff when, after his promotion, he received pay semi-monthly at the same rate which he had previously received, is competent to relieve the plaintiff from the consequences of having signed receipts in full at the time of receiving the semi-monthly payments. Such receipts are only prima facie evidence and are open to rebuttal.
    iEvidence is competent that the plaintiff when, thirteen months after his promotion to the position of check clerk, he received notice from the cashier that the advisory committee had fixed the salary attached to that position and that he would not receive any extra pay for past services, asked the cashier if he did not say that his salary would be made satisfactory to him, and that the cashier -replied that he did and that it should have been done.
    
      The salary fixed by the advisory committee not being ' satisfactory to the plaintiff, he was at liberty to decline to remain longer in the employ of the bank and to recover what his past services were worth.
    Ingraham, J., dissented. '
    Appeal by the defendant, the Irving National Bank, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of February, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21st day of February, 1901, denying .the defendant’s motion fora new. trial made upon the minutes.
    The action was brought to recover for services rendered by plaintiff to defendant as check clerk from the 31st day of May, 1898, to the 30th day of June, 1899. The complaint contains two counts, one ón the theory that plaintiff’s salary was fixed at $1,50Q per annum, and the other on a qucmium meruit. At the commencement of the trial plaintiff elected to proceed on the cause of action on quamfrwm meruit.
    
    Plaintiff entered the employ of the bank in May, 1892, as an extra clerk, woi'king in that capacity assisting the bookkeepers for one month or five or six weeks. He was then assigned to duty as assistant check clerk, which position he held until said 31st day of May, 1898. He receivéd a salary of $600 per annum until May, 1896, or 1897, when it was raised to $700. From that time he continued to draw a salary semi-monthly at the rate of $700 per annum, until said 30th day of June, 1899. It was paid to him in cash by the cashier. He was originally employed by the cashier. Until the period for which he seeks to recover Compensation in this action he performed his duties under the supervision and direction of the check clerk. There were several assistant check clerks whose duties were purely clerical and performed at one desk under the supervision of the check clerk.
    On or about the 24th day of May, 1898, he was informed by the cashier that the cheek clerk had been promoted to the position of a bookkeeper, and that “we want you to take charge of the desk.” Before accepting the desk plaintiff testified that he asked the cashier “ How about the salary,” to which the cashier replied, “ that would be made satisfactory the first of the year.” Plaintiff gave evidence tending to show that he thereupon, relying upon this assurance of the cashier with respect to the salary, took charge of the desk and performed the duties of check clerk, which were more arduous and responsible than those of assistant clerk, until the 30th day of June, 1899. On receiving his semi-monthly salary in an envelope about the middle of February he said to the cashier, “ I don’t see any of that $500 in here.” To this, according to the plaintiff’s testimony, the cashier replied, “That will be all right. You will get that later.” In the latter part of March he asked the cashier, “ When am I going to get that back pay Í ” to which the cashier replied, “ That will be all right, the committee has that in charge.” He testifies that in May he asked the president, “ How is that committee getting along ? ” to which the president replied, “ Mr. Meislahn, they wanted to do certain things and I wouldn’t let them,” and passed into the directors’ room and closed the door without making any further answer.
    With his semi-monthly salary on the 30th of June, 1899, the plaintiff received a note from the cashier as follows:
    “Beginning with July 1st, 1899, and until further notice, the salary of your present position will be at the rate of $900 per annum. All yearly gratuities and extra compensation are now abolished by order of the Board of Directors.
    “J. DENNISON,
    “ Cashier.”
    He then said to the cashier, “ Don’t I get any back pay for the last thirteen months % ” to which the cashier replied, “ You will have to see Fancher about that.” Plaintiff then called on the president and said : “ Mr. Fancher, don’t I receive any back pay for the last thirteen months ? ” and, according to plaintiff’s evidence, the only reply he heard from the president was, “ The Committee, the Committee,” whereupon the president walked away from him. Plaintiff then went to the cashier and 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.” Dennison replied, “ I did, and .it ought to have been done, too, Meislahn,” and asked plaintiff to continue with the bank in that position. That evening plaintiff wrote his resignation and delivered it to the cashier the following morning. The cashier was sworn as a witness for the bank, but the record does not show that he denied any of these conversations with plaintiff. The president was also called as a witness for the bank and does not deny that plaintiff talked with him on these two occasions and interrogated him as testified by plaintiff. He, however, denies having answered in the manner stated by plaintiff, but does not say what answers he gave.
    At the time- of receiving the semi-monthly payments, except the last, plaintiff signed a receipt in full, the same as before he became check clerk. After showing that he performed, to the satisfaction of the bank officers, all of the duties that were formerly performed by his predecessor as check clerk, plaintiff was permitted to prove, under the defendant’s objection ■ and exception, that his predecessor received a salary of $1,500 per annum. It does not appear in the body of the case or in the certificate of the judge that it contains all the evidence.
    
      Grcmt G. Fox, for the appellant.
    
      Ghcm-les JD. Bidgwa/y, for the respondent.
   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 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 exeeuti 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, 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 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.

Ingraham, J.- (dissenting):

I cannot agree to the affirmance of this judgment. The plaintiff was employed in a clerical position in a bank at a salary of $700 a year. The position that he occupied was known as assistant check clerk. Upon the promotion of the check clerk he was assigned' to the duties of that position, which he performed until he resigned. When he was.made check clerk he had some conversation with the cashier of the bank about his salary, and was informed that that question would be subsequently considered, but there was no promise to give him an increase of salary. He continued to work for the salary that he had before received, signed at the end of every two weeks a receipt in full for salary to date, and when his salary was finally increased at the end of thirteen months to $900 a year he refused to accept it and resigned. There was certainly no promise, express or implied, to pay him more than the salary that he was paid. The learned judge did not hold that there was any agreement binding upon the. bank to pay him an additional salary, but left it to the jury to say w'hether or not he was entitled to additional compensation for the additional work that he did as a check clerk, and the jury have awarded him a sum in excess of that for which he was employed and which he received as full compensation for his services. Upon the evidence in the record there is nothing. to justify a recovery. I presume, however, that Ave are precluded from reversing the judgment upon this ground, as there is no certificate that the case contains all the evidence, and we must, therefore, presume that there was sufficient evidence to warrant the verdict. Counsel for the plaintiff, upon the opening of the case, elected to proceed on a quantum meruit, and the plaintiff was alloived to "prove, against the objection and exception of the defendant, what the bank had paid to the officer who had before held the position occupied by the plaintiff. The objection to this evidence was put upon the express ground that it was no proof of the value of the plaintiff’s services in that position. In submitting this case to the jury the learned trial judge charged that the plaintiff’s cause of action was upon a qua/nt/um meruit; that is, “ that he has rendered some services for this bank for which he is entitled to ask a jury to make him an award in payment therefor, that is, that he has rendered these services and established thereby a right to be paid for them, and what he is to be paid for them is to be fixed by you.” Referring, then, to the testimony admitted over the objection and exception of the defendant, the court charged : “ The testimony as to Mr. Taylor, his predecessor’s salary was allowed because it gave some indication as to what services in that position were mércantilely worth. They paid Mr. Taylor, to be sure, $1,500 a year and had paid him that for some six years.” I do not think this testimony was competent for this purpose. The evidence was uncontradicted that this former employee had been many years in the bank, receiving an increase of salary based upon the length and value of the services rendered. The plaintiff had been in the bank but a few months, and 1 do not think that the amount paid to this old employee was competent evidence as to the value of the plaintiff’s services to the bank or upon which the value of his services could be estimated. The amount to be paid to this old and trusted employee whose many years’ experience was a most important element in determining the value of his services was no basis upon which the jury could determine the value of the seiwices rendered by the plaintiff. I think this evidence is condemned by the case of Newhall v. Appleton (102 N. Y. 133) and Galvin v. Prentice (45 id. 165).

I think the judgment should be reversed.

Judgment and order affirmed, with costs.  