
    Theodore D. Wells, Respondent, v. George F. Baker, Jr., Appellant.
    Second Department,
    December 30, 1910.
    Trial — erroneous charge—relevancy of letter relating to one of two causes of action.
    Where the court charged that a letter written by the defendant, and relating solely to the plaintiff’s employment for the work embraced in his first cause of action might be considered in relation to his right to recover on a second separate and distinct cause of action, a judgment in his favor will be reversed.
    Hirschberg, P. J., dissented.
    Appeal by the defendant, George F. Baker, Jr., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of ¡Richmond on the 4th day of May, 1910, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 12th day of May, 1910, denying the defendant’s motion for a new trial made upon the minutes.
    
      Joseph M. Uartfield, for the appellant.
    
      Thomas J. Hitch, Jr., for the respondent.
   Burr,. J.:

. Plaintiff seeks to recover upon three causes of action. Upon the trial the last of these was abandoned. In the first cause of action plaintiff asserts that he was employed to design and superintend the construction of a steel steam yacht for defendant (excepting only the interior joiner work and fittings), for which he was to be paid a sum equal to five per cent of the cost of the vessel. Defendant admitted the employment, and the jury fixed such cost at $87,685. As part of the same cause of action plaintiff contended that, as part of his compensation for the services referred to, he . was to be paid five per cent upon the cost of the small boats, forming part of the yacht’s outfit, irrespective of whether or not he actually superintended the purchase of these. Upon conflicting evidence the jury found in plaintiff’s favor, and that such cost was $5,900. Upon the first cause of action there was found due plaintiff the sum of $4,679.25.

For a second cause action plaintiff alleged that although in the first instance he was not employed either to design or to superintend the construction of the interior joiner work and the fitting up of the owner’s quarters upon the yacht, Walker & Gillette, wTho were employed in connection therewith, owing to their inexperience in naval architecture, encountered so many difficulties that they were forced to call upon him for assistance, and that defendant, the owner of the yacht, employed him to assist them and that he did so. Upon conflicting evidence the jury found in plaintiff’s favor as to this employment and fixed the reasonable value of his services at $839.12, being three per cent upon the cost of said work, which they found to be $27,970.99. .Together’with the special findings of fact above referred to the jury found á general verdict in plaintiff’s .favor in the sum of these items, to wit, $5,518.37. From the'judgment entered on such verdict, and from an order denying a motion for a new trial upon the minutes, this appeal is taken. .

■ Although the issue' of fact arising under the second cause of action was sharply contested, we should affirm the judgment if it were not for an error in the charge prejudicial to defendant. During the progress of the work defendant wrote plaintiff a letter which was received in evidence. Defendant claimed, and plaintiff admitted, that this letter related .to the deckhouse. Although this was part of the construction of the yacht under plaintiff’s 'supervision, Walker & Gillette had drawn a pian therefor which had been-submitted to plaintiff for his approval. This letter did not relate in any way. to the work- referred to in the second cause of action. On his direct examination plaintiff testified : “lie sent me this.letter of January 4th, which you have just read, and the subject of that matter [letter?] was the type óf deck house which should be on the yacht, which was strictly a part of my work, but which . Mr. Baker had seen fit to develop with Walker & Gillette. * * * The subject-matter of that letter was the type of construction of the deck house, which was.different from that required by my specifications.” In this letter defendant said : “ It appears that Messrs. Walker & Gillette and myself got a wrong impression from you in regard to your approval of the plans drawn by W. & G. * * * It now seems.that you have some doubts as to the seaworthinéss of the plan and also as to its water tightness, etc., etc.; in other words that you do not care to put your O. K. on them. * * * If these plans are not what you consider proper for the boat I should be obliged to have you point out at once what remedies would make them proper.” In instructing the jury the learned trial justice said, referring to plaintiff’s claim under his second cause of action : “ Mr. Wells claims that because after they got into the work of building the boat Walker & Gillette called on him for assistance or aid in going on with the work, and because Mr. Baker wrote a letter telling him that he would have to help him, that he; Wells, is entitled to commissions on that expenditure. * * * It appears these men were not naval mer ; they were not used to building boats or decorating boats or putting in furniture in boats, and I suppose this was a novel enterprise to them. A man might be very skillful in decorating a large room and still when he came into the close quarters of a boat, with the peculiar shape of the boat and the necessity for availing himself of the best results from these cramped quarters, he might be at sea about it and" would have to call in somebody who understood it; but the question is whether, on all the evidence here, Mr. Wells is entitled to recover for such assistance as lie gave them. There is a letter here in which Mr. Baker says that he will have to help them, but I leave it to you to say whether Wells is entitled to pay for that. On one side there is Baker’s letter, and the fact that Mr. Wells did give them assistance, and,, on the other side, is the fact that when Mr. Wells was engaged he was told by Baker that he, Baker, did not expect1 him to pay him for this work, as. he had other men to do it.” At the close of the charge defendant’s counsel submitted the following request: “ I ask your Honor to charge that this letter of January 4th, 1909, referred to in your charge, from Mr. Baker to Mr. Wells referred, upon the uncontradicted testimony, solely to the exterior of the deck house; that is, the sides, and did not relate to the interior or the owner’s quarters.” This request was refused and defendant duly excepted. It is apparent that for the moment the learned trial justice overlooked the fact testified to by plaintiff himself, that this letter related not to the disputed questions arising under the second cause of action, but to an entirely different matter, and Construed it as relating to the interior work in the "owner’s. quarters, originally undertaken by Walker & Gillette. It is possible that the jury fell into-the same error, particularly as this error was emphasized by the refusal of defendant’s request to charge. As the evidence respecting the subject-mafter of this letter was undisputed, plaintiff’s counsel should have concurred with ’counsel for defendant in the correction of the error in which the trial judge had fallen: Instead of that lie stood mute’ and allowed the jury to retire under . a misapprehension.

The judgment and order appealed from should be reversed'.and a new trial granted, costs to abide the event.

Woodward, Jenks and Rich, Jj., concurred ; HirsciibERg, P. J., dissented. -

Judgment and-order reversed and new. trial granted, costs to abide the event.  