
    The Merritt & Chapman Derrick and Wrecking Company, Respondent, v. Walter J. Tice and Others, Appellants.
    First Department,
    March 15,1907.
    Evidence — when fact that defendant was insured may be shown as bearing upon the nature of contract with plaintiff.
    Although it has been held in a former trial of an action to recover compensation for services in saving a stranded vessel that the fact that the owners had insurance upon the vessel cannot be shown, yet when on a new trial there is a question as to whether there was a contract for work, labor and services of which the State courts had jurisdiction or whether the plaintiff was acting solely as salvor, in which case Federal j urisdiction was exclusive, it may be shown that a bill of services rendered by the plaintiff was presented by the defendants to the insurance company as a basis of damage when proof was admitted, without objection, that there was insurance on the vessel, for the •retention of such bill bore directly upon the question of the nature of the contract, as an admission of indebtedness, and as affecting the credibility of the defendants.
    Scott, J., dissented.
    Appeal by the defendants, Walter J. Tice and others, 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 7th day of June, 1906, upon the verdict of a jury, and also from two orders entered in said clerk’s office on the 11th day of June, 1906, one denying the defendants’ motion for a new trial made upon the minutes, and the other granting the plaintiff’s motion for an extra allowance.
    
      James K. Symmers, for the appellants.
    
      Avery F. Cushman, for the respondent.
   Patterson, P. J.:

This is the third time this cause has been before.us. on'appeal (77 App. Div. 326 ; 97 id. 457), and it is unnecessary to state in detail the facts appearing upon the record. The plaintiff is'a corporation, and the defendants were partners, who in December, 1898, owned a barge named the F. W. Stetson, which was stranded on the Long Island shore. It is alleged in the complaint that at the special instance and request of the defendants, the plaintiff performed certain wrecking service work and labor, 'and furnished materials to the defendants in and, about the rescue and floating of the said barge, and bringing the' same to the port of Hew York, putting her upon the dry dock and delivering her to the defendants. In their answer the defendants admitted that the plaintiff rendered certain service of the character referred to in the complaint, but they set "up as an affirmative defense that in the prosecution of the work the plaintiff was acting purely as a salvor, and'that neither the defendants nor any one of them entered into a contract or agreement or understanding with the plaintiff that it was to receive or that; the defendants were to pay any sum whatever for the service, except such as the plaintiff might be entitled to as salvage compensation proportionate to the value of such property as-might be saved by its efforts. • On the first trial; before proof was taken, the defendants moved to dismiss the complaint on two grounds, one being that the court had no jurisdiction of the subject of the action. That motion was granted, but subsequently on a motion for a new trial the trial court reached a different conclusion and held that the State court had jurisdiction, and granted a new trial. On an appeal from the. ordér entered upon that decision, this court held that the courts of the State would have no jurisdiction of an action brought to recover upon a marine contract for salvage, but that the Supreme Court of the State would have jurisdiction of an action brought against the owner of the barge to recover upon an ordinary contract the value of work, labor and service. The order granting a new trial.was affirmed, and a second trial being had a verdict was rendered for the plaintiff, and, on an appeal from that judgment, we held that in order to displace a salvage claim and substitute therefor a different contractual relation between the owners of vessels rescued from perils of the sea and the persons through whose exertions that result is accomplished, there must be proof of a contract specific and distinct in its terms which provides for compensation in any event, whether the imperilled property is saved or not. The judgment then appealed from was reversed for errors in the admission of evidence. It was held, as on the first appeal, that the complaint in this action was sufficient to allow the plaintiff to show that it had entered into a contract with the defendants of such a charactér as would displace a claim for salvage. On the trial from which the present' appeal is taken the plaintiff produced evidence tending' to show — and which did show, and the jury believed it — that the contract entered into between the parties was not one for salvage service, but for the payment of compensation to the plaintiff for such service as it might render in and about the rescue of the stranded barge, irrespective of what the result of such service might be.

There was, upon this branch of the case, before the court and jury the issue of fact as to what the contract entered into between the parties was. It was shown by the plaintiff that the compensation to be paid for its service was made upon the basis of day’s pay; that that contract was made because there was too much uncertainty as to getting the vessel afloat, and that it was not practical to give a lump-sum figure for such a piece of work, and that the plaintiff would send to do it upon the day’s pay basis, and make every endeavor to float and deliver the vessel; and it appears in evidence that one of the. defendants said to go ahead and do the best that could be done. It was testified to that day’s pay ” means the reasonable charge for the use of men and wrecking material in the prosecution- of the work, and one of the defendants testified that he expected the plaintiff to get its pay; that he expected to pay it the reasonable value of the service rendered, and that nothing was said by the d.feiidants at- the time of the employment about the compensation being taken out of the boat.” There was a clear issue' of fact beftireethe jury as; to what the contract was, and: they having found in favor of the plaintiff on that, issue, there' is no reason for disturbing the verdict. It cannot be said to be against evidence-. "With-this, finding of the. jury (the law of the case having been settled by our previous decisions) the only subject for consideration remaining is that" of alleged errors of the trial court concerning, evidence. There is one error-suggested which it is insisted is fatal to the plain-, tiff’s right to recover. On the second trial it appeared in the record that the plaintiff was allowed-, over the- objection and exception of the defendants, to show that the- defendants- had insurance upon the barge to the amount of $10,000, and .that, ruling, of the trial court ivas deemed- a radical' error necessitating .a reversal of the judgment.. On the trial now under réview the question of insurance was again made the subject of inquiry, and,If the record -presented it in the same form or in the .same- Objectionable manner as upon the second trial, we should conceive it Our duty to reverse again; but it is not presented in the samé way, nor can the ruling of the court upon it be condemned, in the same manner. Proof, without objection, came into the case that, the defendants,' had insurance upon the barge. " Ón cross-examination: of a witness for the defendants, it appeared that the plaintiff had rendered a bill to the defendants for general services in, .and about, the work of rescuing the barge and that that bill was retained for a long time by the defendants, without their ever suggesting that there was only .a salvage contract between the parties.. - The- witness was asked, in substance, what he did. with the bill and whether he did not present it to the underwriters.- The purpose of that line of inquiry was to show that the defendants had received, a- bill for a specific amount, instéad of for an uncertain claim arising from salvage ; that they acquiesced in it, kept it for a long time, without objection, and afterwards'adopted it as a. reasonable charge, by submitting it "to the underwriters as. an amount for which they were liable in. the. matter of the rescue, of the barge. This cannot bo regarded only as an attempt to- put the matter before the jury which would incline them to believe that the defendants were fully indemnified for their expense and that, therefore, a prejudice was created in their minds: It was legitimate as tending to show the attitude which the defendants themselves took with respect to the contract and a recognition of the fact that they had incurred an indebtedness for general services rendered by the plaintiff. The vice of the ruling of the justice on the second trial was in admitting, over objection, any evidence as to there being insurance and the amount of it. In the present case the evidence of the insurance was in without objection, and the conduct of the defendants with respect to the bill .rendered and what was done with it was indicative of the understanding the defendants had concerning the nature of the employment of the plaintiff. The plaintiff was not allowed to give proof of the entire claim made to the underwriters nor whether the underwriters paid or not, and the evidence as far as admitted, was competent as affecting the credibility of the defendants,, who testified that they never had any expectation of being obliged to pay the plaintiff except as for salvage services. There is nothing more in the case requiring consideration.

The judgment and orders appealed from should be affirmed, with costs.

Laughlin, Houghton and Lambert, JJ., concurred; Scott,. J., dissented.

Judgment and orders affirmed, with costs. Order filed.  