
    John Bogart, Respondent, v. The New York and Long Island Railroad Company, Appellant.
    First Department,
    March 8, 1907.
    Contract — action by consulting- engineer for services to railroad — power of president of railroad to direct performance of services — when such employment not inconsistent with office of director and secretary — affidavit as evidence.
    When a consulting engineer has been appointed by resolution of the directors of a railroad " at such compensation as the board may hereafter determine upon,” the president of the corporation may authorize the actual performance of the services, when the by-laws provide that he shall be the chief executive officer of the company and shall supervise, other- officers and all departments of the road in every respect.
    In order to warrant a recovery for such services it is only essential that they were within the line of services performed by consulting engineers and were directed to be performed by the president in good faith.
    This is true although the engineer had previously been elected a director and secretary of the railroad, as by virtue of such office he was under no obligation to perform services as consulting engineer.
    The railroad by paying a prior bill for similar services admitted'its obligation to pay for like services thereafter rendered by authority.
    The affidavit of the president of the railroad used in a motion for a bill of particulars which admitted that the services were rendered “ for the defendant ” is competent evidence against it.
    Ingbaham, J., dissented, with opinion.
    
      Appeal.by the defendant, The New York and Long Island Railroad Company, 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 May, 1906, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 10th day of May, 1906, denying the defendant’s motion for a new trial made upon the. minutes.
    
      George L. Kobbe, for the appellant.
    
      George M. Pinney, Jr. [Aaron G. Thayer with him on the brief], for the respondent.
   Laughlin, J.:

The action, as limited on the tidal, was brought to recover the value of services rendered by the plaintiff, as consulting engineer, to the defendant during the period commencing in the month of October., 1901, and ending in the month of November, 1902. On the 25th day of April, 1895, plaintiff was appointed consulting engineer of the defendant by a resolution duly adopted by its board of directors, which, with respect to the compensation to be paid, provided as follows: “ At such compensation as the board may hereafter determine upon.” This appointment was never revoked, but no salary was thereafter prescribed for the position. Mr. Hiven was president of the company from the 25th day of April, 1895, until the 11th day of April, 1904. The plaintiff had been a director of the company since the 12th day of December, 1889, and held twenty-five shares of stock of the p>ar value of $100 each, and he was elected secretary of the company in January,. 1896. After his appointment as consulting engineer, and prior to the sixteenth day of December the same year, the plaintiff, at the request of the president of the defendant, performed services consisting of engineering advice and making plans and estimates for the route of the railroad which the defendant contemplated constructing under the East river, across Manhattan Island and under the Hudson river to the State line ; and on that day he presented to the board of directors of the defendant a bill for $2,000 for such services, which was approved and paid. On the 1st day of Hovember, 1895, the board of directors of the defendant, by a formal resolution, in effect declared its intention to construct a railroad from Casanova station, on the New York, New Haven. and Hartford railroad, to the East river, near the junction of One Hundred and Forty-first street and the Southern boulevard, and thence under the East river to Lawrence Point in Long Island City on the line of Forty-second street, New York, continued, and thence under the Fast' river to Forty-second street, and under Forty-second street to and under the Hudson river to the State line, with various branches therein described. There was no meeting of the board of directors after the month of January, 1896, until the 14th day of October, 1902, The plaintiff testified that during the ' period commencing in October, 1901, and ending in November, 1902, pursuant to the request of the president of the defendant, he formulated a plan to solve the engineering problem in connecting the proposed tunnel and railroad of the defendant with the Forty-second street terminus of the New York Central and Hudson River Railroad Company and the New York and New Haven railroad, and prepared and furnished plans, studies, tracings, profiles, drawings and explanatory documents for connecting the routes of the respective railroads at Forty-second street, and a profile plan of the tunnel under the East river; and that by direction of the president of the defendant he delivered them to Mr. Janney, a stockbroker, through whom it appears the president of the defendant endeavored to interest the New York Central Railroad Company in the plan; that this work consumed about thirteen months of his time and that he also employed draughtsmen in connection with it throughout the same period; that these plans embodied a scheme for depressing the tracks of the New York Central leading into the Grand Central Station and for a depressed or basement station substantially such as has now been adopted and is now in progress of construction at that point,” including a plan for making the change without substantially interrupting the traffic, and including plans for connecting the lines for passenger, traffic and operating the cars by steam oi electricity^ which involved a study of the bed of the East river and the preparation of profiles thereof; that by direction of the president of the defendant,-he had various consultations with Mr. Janney and with representatives of the New York Central and Hudson River Railroad Company, with a view to having the plan approved and prepared detailed estimates of the cost of the entire work; that lié had large experience as a consulting engineer; that the general duties of such an engineer are the preparation of plans, estimates and designs, and advising the executive officers of the company, and that his.serviees were worth the sum of $18,000. The plans were subsequently delivered by Janney to the president of the company, and so far as appears, it still has them. The plaintiff introduced in evidence a letter written by the president of the defendant to said Janney under date of May 2, 1902, as follows: “My Dear Sir.— In the matter of the plans for connections between the New York and Long Island Railroad and the railroads using the Grand Central Station, I would say that the Hon. John. Bogart, as our Consulting Engineer and Acting Chief Engineer, has full power and authority to sign the plans on behalf of the New York and Long Island R. R. Co. and to agree with the engineers of the companies using the Grand Central Station upon all matters of engineering detail necessary or convenient in arranging a suitable operating connection. Whenever these plans have been agreed upon by the experts on both sides, I have no doubt the terms of a contract will be readily and promptly agreed upon. As President of the New York and Long Island R. R. Co. I am ready to take up the arrangement of a contract.” Plaintiff also introduced in evidence an affidavit of the president of the defendant, used on a motion for a bill of particulars, showing that the company was formed in 1887 ; that in 1892 a construction company was formed and work was begun near the easterly terminus of the line as originally established in Long Island City, but a disastrous explosion occurred, resulting in many casualties and the construction operations were suspended and have not been resumed; that efforts have been made from time to time to finance the enterprise, but without success; that “in the year 1902 I requested him (meaning plaintiff) to formulate a plan or to solve the engineering problem involved in connecting the location' of the defendant’s proposed tunnel with the 42d St. terminus of the New York Central & Hudson River R. R. Co. and the New York, New Haven & Hartford R. R. Co. I am not aware of the extent of the plaintiff’s services in that connection ; I know the character generally speaking, for I saw their result embodied in a blue print ground plan and profile. With that exception I am not aware of any services or any work done by 'the plaintiff for the defendant during the times mentioned in his complaint.”

At' the close of the plaintiff’s case the defendant moved for a nonsuit, a nd upon the denial of the motion rested without offering any evidence either oh the question of the employment of the plaintiff or the value of his services. Inasmuch as his testimony as to the value of his services might have been controverted, the jury were justified in accepting it, and the only question we are called upon to review is whether the defendant is liable. It is evident from the failure of the board of directors to meet, that the management of the business was left to the president, whose powers and duties, so far as material to the appeal, were defined by section 1 of article 8 of the by-laws, as follows: “The president shall be the chief executive officer and head of the company in . all its operations, arid shall supervise all other officers and all departments of the road in every respect.” It is manifest that the services rendered by the plaintiff were essential to the development of the company. I am of opinion that it was fairly within the authority of the president to direct the plaintiff to perform those services. It is to be borne in mind that it was not essential that the president be clothed with- authority to employ the plaintiff, for' that had been previously done by the board of directors. It was merely essential that the services fell witliin'the line of services to be performed by the consulting engineer and that they were in good faith directed to be performed by the president.' It cannot bo successfully maintained that by virtue of his relation as director and secretary of the company, the plaintiff was not entitled to charge for his services. (Bagley v. Carthage, W. & S. H. R. R. Co., 165 N. Y. 181.) He was under no duty as secretary or director' of the company to perform these services. The company by paying a bill for similar services, admitted that it was under obligation to • pay the plaintiff for any like services thereafter rendered by authority. Moreover, 1 am óf opinión that the. affidavit of the president of the company, used by the defendant on a motion for a bill of particulars, and filed in this action, is evidence against the company that these services were rendered for the company, for it contains- an admission that they were rendered “for the defendant,’ and having been used by the defendant in the action it was competent evidence against it. (Chicago & Northwestern R. Co. y. Ohle, 117 U. S. 123; National Steamship Co. v. Tugman, 143 id. 28; Trustees of Wabash & Erie Canal v. Bledsoe, 5 Ind. 133.)

It follows that the judgment and order should be affirmed, with costs.

Patterson, P. J., Clarke and Scott, JJ., concurred; Ingraham, J., dissented.

Ingraham, J. (dissenting):

I dissent. When the plaintiff was appointed consulting engineer the resolution of the board of directors provided that it should he at such compensation as the board may hereafter determine upon,” and he accepted that appointment upon such terms. 1 think he impliedly agreed that the compensation for the services to be rendered under such appointment was to be determined by the board of directors, and that, he was not entitled to recover from the defendant compensation for his services based upon a quantum meruit. Assuming that the president had the power to direct him to perform services for the company, such direction was not an employment of the plaintiff, but simply regulated the work that he was to perform as an officer or employee of the company under the appointment which he had accepted. He accepted the appointment without the salary being fixed, agreeing that it should be subsequently fixed by the directors, and not the president. As an employee of the company he performed services for the company, but the services that he performed were under his appointment by the board of directors, and his agreement with the company was that he should be paid such compensation as the board should fix. As he has never requested the board to act, and as the board has never fixed the compensation, I do not think he was entitled to recover. The action of the board in directing that he be paid for the services that he performed prior to the services in question was an act of the board under the power that it had reserved to itself to fix the plaintiff’s compensation. It certainly was not an admission that he was entitled to recover the value of the services that he rendered in the future, without action by the board of directors. An entirely different question would be presented if the president of the company had employed the plaintiff to render services to the company, which services he-had rendered, and the company had accepted them, but where he was employed by the company at a salary to be fixed by the board it seems to - me that he-can only recover the amount of the salary or .compensation thus fixed, and is not entitled to recover upon a quantum meruit.

Judgment and order affirmed, with costs. Order filed.  