
    Howe v. Buffalo, New York and Erie Railroad Co.
    
    
      Principal and agent.—Payment
    
    The law implies a promise on the part of a principal to indemnify his agent, for the doing of an act, in obedience to orders, which would have been lawful as to both, if the principal actually possessed the authority claimed.
    
    The acceptance of a surety’s note in satisfaction of the demand, is equivalent to payment, as against one bound to indemnify the surety.
    Howe v. Buffalo, New York and Erie Railroad Co. 38 Barb. 124, affirmed.
    Appeal from the general term of the Supreme Couit, in the seventh district, where a judgment rendered in favor of the plaintiffs, in a case tried before the court, without a jury, had been affirmed. (Reported below, 38 Barb. 124.)
    This was an action by James T. Howe against the New York Central Railroad Company, to recover an indemnity for damages to which the plaintiff had been subjected, as a conductor of the compai y, by obeying its orders, in expelling a passenger from its cars for non-payment of fare.
    On the trial of the cause, before Johnson, J., without a jury, it appeared, that the plaintiff was a conductor on the defendants’ road, in January 1858, and was charged with the duty of collecting and receiving fare from passengers. He was instructed by the company not to accept or receive in payment of fare, any ticket, purporting to be issued by another corporation, the New York arid Erie Railroad Company, and indorsed “good for six days only from date,” after the time so limited; and he was required to exact payment of fare from any passenger presenting such ticket. He understood and believed, that the defendants had the right to give this order, and that he was bound to obey it.
    On the 21st of that month, a Mr. Hotchkin presented to the plaintiff a ticket of that description, more than six days from its date, as evidence of the payment of his fare. The plaintiff refused to accept it, demanded the fare, and upon the refusal of Hotchkin to pay it, stopped the train and put him off, believing that he had the right to do so, and using no more force than was necessary.
    Hotchkin subsequently brought an action in the supreme court, for the injury and detention occasioned by this act of *the conductor. The defendants J were immediately notified of the suit, and employed and paid the attorneys and counsel to defend it. Hotchkin recovered judgment for $312.68, which was docketed on the 20th of May 1859. Execution was issued against the body of the plaintiff, under which he was arrested and imprisoned. The judgment was assigned by Hotchkin to David Rumsey, to whom the plaintiff gave his note for the amount, with interest, which was accepted in full payment and satisfaction by Mr. Rumsey; and the plaintiff was, thereupon, discharged from imprisonment.
    Upon this state of facts, the learned judge held, as matter of law, that the defendants were liable to the plaintiff, and directed a judgment in his favor for $356.68; to which the defendants excepted. And the judgment having been affirmed at general term, they took this appeal.
    
      Lanning, for the appellants.
    
      Rumsey, for the respondent.
    
      
       Also reported iu 4 Trans. App. 249.
    
    
      
       Turner v. Jones, 1 Lans. 147. This, in part, overrules St.' John v. St. John’s Church, 15 Barb. 346.
    
   Porter, J.

The plaintiff acted in good faith, and in obedience to the defendants’ instructions. He supposed the company to possess the authority it assumed, and he found himself involved in a serious liability, by fidelity in the discharge of a duty imposed by his principal, where he was wholly free from intentional wrong. Under these circumstances, the company very properly assumed the burden of defending his act. Whether the judgment recovered against him was right or wrong, is a question which does not arise on the present appeal. If it was right, the defendants should have paid it, without exposing him to imprisonment, for an act done in good faith, in the interest and by the orders of the company. If it was wrong, the error should have been corrected by a review of the judgment. The appellants chose to abandon the defence, and permit him to be the sufferer. The court below was right in holding that the plaintiff was entitled to redress. There is an implied obligation on the part of the principal to indemnify an innocent *agent, for obeying his orders, where the act would have been lawful in respect to both, if the principal really had the authority which he claimed. (Adamson v. Jarvis, 4 Bing. 66; Coventry v. Barton, 17 Johns. 142; Powell v. Trustees of Newburgh, 19 Id. 284, 289; Story on Agency, §§ 339, 340.)

The record of the judgment recovered by Hotchlcin was properly admitted as evidence. (Kip v. Brigham, 6 Johns. 158; Blasdale v. Babcock, 1 Id. 517.) There was no error in permitting proof of the fact, that the plaintiff used no more force than was necessary, in removing Hotchkin from the car. It appeared, presumptively, from the record, that the judgment was rendered on the ground, that the removal itself was unlawful, and not on the ground of excessive force in the exercise of a legal right; but, it could not prejudice the defendant, to exclude any possible conclusion that the latter was the ground of recovery. (Dunckel v. Wiles, 11 N. Y. 420; Gardner v. Buckbee, 3 Cow. 120.)

There is no force in the objection, that the assignee of the judgment accepted the note of the plaintiff, in lieu of actual payment. In respect to the right of the latter to indemnity, he stood to the defendant in the relation of a surety; and it is well settled, that in such a case, the acceptance by the creditor of the note of the surety, in satisfaction of the demand, is equivalent to actual payment. (Chase v. Hinman, 8 Wend. 456; New York State Bank v. Fletcher, 5 Id. 85; Barclay v. Gooch, 2 Esp. 571; Clark v. Pinney, 6 Cow. 297; Wetherby v. Mason, 11 Johns. 518.)

Other points were urged in behalf of the appellant, but we think them plainly untenable. The judgment should be affirmed.

Judgment affirmed. 
      
       And see D’Arcy v. Lyle, 5 Binn. 441.
     