
    Archibold M. Baley, App’lt, v. Martin Henderson, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 11, 1890.)
    
    Services—Parties—Nonsuit.
    In an action for services in cutting and drawing logs, it appeared that defendant told plaintiff to cut and draw them for defendant’s benefit. It being shown that the land was owned by defendant and his four brothers, the court granted a nonsuit on the ground of non-joinder of said brothers. Held, error; that it was competent for defendant tó employ plaintiff to do this work, whether he owned any interest in the land or not.
    Appeal by the plaintiff from a judgment of the county court of Yates county, and from an order denying a motion for a new trial.
    
      George B. Baley, for app’lt; M. A. Leary, for resp’t.
   Corlett, J.

The action was originally brought in a justice’s court The portion of the complaint pertinent to this controversy is to the effect that the defendant employed the plaintiff to perform work and labor for him in cutting, drawing and skidding a large quantity of logs, and that the services were worth $100.

The answer was a general denial, and a further answer of nonjoinder of parties defendant. A trial in the justice’s court resulted in a verdict for the defendant. The plaintiff appealed to the county court where a new trial was had in March, 1889. At the close of the evidence the plaintiff was nonsuited. A motion for a new trial was afterwards made and denied, and the plaintiff _appeals to this court.

The evidence on the part of the plaintiff on the trial tended to show that he bought standing timber from one Metcalf to be cut and carried away. That while the plaintiff and his men were at work, the defendant notified him that the timber that he was cutting was on his land, and forbid a continuance of the work. That after some negotiations between the defendant and Metcalf, the defendant told the plaintiff to go on and cut certain timber and logs and draw them out, and put them upon a skid-way for the defendant’s benefit. The plaintiff cut and drew out a little more than eight thousand feet, and the labor was worth six dollars a thousand.

At the close of the plaintiff’s evidence the defendant moved for a nonsuit upon the ground that no promise to pay had been proved, and that there was no implied contract. The court denied the motion and the defendant’s counsel excepted. The defendant then put in evidence a deed of the premises from one Depew to the defendant and his four brothers, and gave evidence tending to show that the owners of the land were in possession of the premises. The defendant’s counsel again asked that the plaintiff be nonsuited upon the ground that there was a nonjoinder of parties defendant, also upon the ground above stated. The court granted the nonsuit for the reason that the action should have been brought against all the owners of the land. The plaintiff’s counsel excepted.

The sole question in this case is whether the nonsuit should have been granted. It is obvious from the above statement of facts that the county court fell into an error. The plaintiff’s evidence tended to show that he was employed by the defendant to do the work which he performed. The trial court held that there •was sufficient evidence on that subject to be submitted to the jury, as its refusal to nonsuit the plaintiff on that ground shows. The deed put in evidence proved that several persons including the defendant owned and occupied the land as tenants in common, and the nonsuit was granted upon the ground that the other owners .should have been joined as co-defendants.

It was clearly competent for the defendant to employ the plaintiff to do this work; it would have been so whether the defendant owned or had any interest in the land or not.

So far as appears from the evidence, the plaintiff had no knowl •edge or information as to anybody having any interest in the land except the defendant with whom he made the contract. The case .should have been submitted to the jury.

The judgment and order must be reversed and a new trial granted, with costs to abide the event.

Dwight, P. J., and Macomber, J., concur.  