
    The Merritt & Chapman Derrick and Wrecking Company, Respondent, v. Walter J. Tice and Others, Appellants.
    
      Sahage—proof necessary to displace it cmd establish an express contract—what is not a deilaration against interests—proof, as to the insurance carried by the defendant.
    
    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 by whose exertions that result is accomplished, there must be prpof of a contract specific and distinct in its terms which provides for compensation ; in any event, whether the imperilled property is saved or not.
    In an action brought to recover for services rendered by the plaintiff in removing the defendants’ barge from a beach on which it had stranded, the plaintiff contended that it had rendered the services under an express contract which displaced the claim for salvage, while the defendants admitted that they were liable upon a claim for salvage, but denied the existence of the alleged contract. Held, that evidence that one of the defendants came to the plaintiff’s office with a bill which the plaintiff had rendered, and wanted to know the least that the-plaintiff was willing to take, was not admissible on the theory that it was a. declaration against the defendants’ interests respecting the alleged contract, asserted by the plaintiff, as the conversation might have related to the claim for salvage as well as to the claim upon the alleged contract;
    That it was improper to allow the plaintiff to inquire of the defendants concerning the insurance which they carried on the stranded barge, as that subject-had no bearing upon the controversy; and, so far as it tended to show that the-defendants had a claim against the insurance company, from which it might, recover whatever it might be compelled to pay to the plaintiff, it had a tendency to prejudice the minds of the jury.
    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 16th ■day of November, 1903, upon the verdict of a jury, and also from •an order entered in said clerk’s office on the 19th day of November, 1903, denying the defendants” motion for a new trial .made upon "the minutes.
    
      James F. Symmers, for the appellants.
    
      Avery F. Cushman, for the respondent.
   ."Patterson, J.:

There are in this record" two errors in rulings upon evidence, so -substantial and grave in their character as to require a reversal of the judgment from which this appeal is taken and a new trial of the issues. The case was before us on a prior appeal (Merritt & Chapman Derrick & Wrecking Co. v. Tice, 77 App. Div. 326). The plaintiff sued to recover condensation for services rendered in connection, with removing a barge belonging to' the defendants from the shore on Long Island, on which it had been stranded during a storm. Under the allegations of the complaint the action was for work, labor and services. In their answer the defendants admitted that the plaintiff had rendered labor and service in and about the .rescue of and in floating the barge) but also set up - as a separate defense that the services rendered were in their nature salvage services ; and upon that defense was founded a contention that the admiralty courts of the United States had exclusive jurisdiction of ihe plaintiff’s claim.

It was held by us on the former appeal that if the plaintiff had •only a claim for salvage service, this court was without jurisdiction ; but that under the allegations of the complaint there was .sufficient to allow the plaintiff to show that it had entered into a ••contract with the defendants of such a character as would displace -a claim for salvage, and in that view we reversed a judgment dismissing the complaint. On the trial, which resulted in the judgment from which this, appeal is taken, the plaintiff undertook to prove a contract which would entitle it to sue in a State court, or, in other words, a contract entirely irrespective of and differing from the obligation arising out of purely salvage service.

It is abundantly established 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 by 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 Independence, 2 Curt. 350, 355; Steamboat Co. v. Chase, 16 Wall. 522, 524; The Brig Susan, 1 Sprague, 499; Chapman v. Engines of The Greenpoint, 38 Fed. Rep. 671, 672; The Louisa Jane, 2 Low. 295.) Upon the trial now under review the judge expressly charged the jury that such was the law, and they necessarily must have found that the plaintiff and the defendants entered into a contract by which the plaintiff .was to be paid for its services in any event, and we think the evidence might justify that finding if it were all properly admitted. It was not necessary that the parties should stipulate in totidem verbis that the plaintiff Was to be paid in any event, but if the term of the contract was that the plaintiff was to be paid in any event and it appeared that such was the intention of the parties that would be sufficient, and here there was testimony given by one of the plaintiff’s witnesses that the plaintiff undertook the work of attempting to rescue the stranded barge upon condition that payment should be by the day in consideration of the doubtfulness of success in removing the vessel. But the testimony given by the plaintiff’s witness on that subject was flatly contradicted, and it was on the vital issue in the case. The plaintiff sought to support its version by evidence of a conversation had between one of the officers of the plaintiff and one of the defendants respecting the plaintiff’s claim. The witness was allowed to testify that- one of the Messrs. Tice came to the plaintiff’s office with a bill which had been rendered and Mr. Tice wanted to know the least the plaintiff was willing to take. This evidence was offered and was allowed under "objection and exception, as the court said, as “an admission against (the defendants’) interest,” and it was evidently regarded as an admission of a specific contract such as the plaintiff insisted had been made between the parties. In the attitude in which the defendants stood to the case it could not be regarded as a declaration against interest respecting the ■ particular contract asserted to have been made by the plaintiff. The defendants admitted they were liable upon a salvage claim, and a conversation with reference to the plaintiff’s demand may have related as much to the settlement of the salvage claim, as to the settlement of a demand upon a particular . contract. Unless it related exclusively to the particular contract it was entirely immaterial, and there is no circumstance to show that the conversation could in any way be construed as an admission that the defendants were liable upon such a contract as the plaintiff sought to prove. It was at most an attempt of the defendants to-secure a settlement of some claim made against them, and what was' said is not evidence on tlie one issue involved here of a specific con- , tract having been made, if it is evidence at all.

Again, the plaintiff was .allowed', under objection and exception, to inquire of the defendants what insurance they carried upon the stranded barge. That was a matter entirely immaterial to the question of a contract having been made between the parties. The only purpose for which this could have been offered was. to make it appear to the jury that there was a, claim-against an insurance company out of which the defendants could reimburse themselves for anything they might have been compelled to pay to the plaintiff. Inquiries of that character are not permitted. They naturally tend to prejudice the minds of the jury. (Cosselmon v. Dunfee, 172 N. Y. 507.)

For the errors pointed out the judgment and order must be reversed and a new trial ordered, with costs to appellants to abide the event.

Van Bbunt, P. J., O’Brien, Hatch and Lau&hlin, J J., concurred.

Judgment and order reversed, new trial ordered, costs to appellants -to abide event.  