
    Russell vs. Miner and Somerville.
    The statute fixing the amount of an auctioneer’s compensation for his services, in the absence of an agreement in writing, at two and a half per cent on the amount of the sales, refers only to his services as an auctioneer.
    An auctioneer, undertaking to sell goods, is bound to take such proper and necessary steps to insure a successful sale, as are customary and necessary; and'if, in performing those incidental duties, any expenses are incurred, such expenses will be properly chargeable against the owner of the property.
    In the absence of a written agreement, their compensation for their services as auctioneers cannot exceed two and a half per cent; but what other charges, for disbursements and expenses, they may be entitled to must depend upon what they did beyond the sphere of their duty as mere auctioneers, and upon what, as factors, it was right, reasonable and customary that they should and did do, in respect to the property sold.
    The services which an auctioneer, as such, performs, are selling property at public sale, to the highest bidder. All else is beyond his mere calling as auctioneer; and it is only for services as “an auctioneer” that the compensation, fixed by statute, is given.
    THIS action was brought against the defendants to recover the penalty imposed by the Bevised Statutes upon auctioners demanding or receiving,, from the owner of property sold by them at auction, a greater compensation, for their services, than two and a half per cent, unless by virtue of a previous agreement in writing. (1 B. S. 532, §§. 23, 24.) ■
    The complaint alleged that the defendants were partners in business, as auctioneers, doing business, as such, in the city of New York. That at said city, on or about the 5th day of March, 1867, the plaintiff employed the defendants, as such auctioneers, to sell for her, at public auction, certain personal property and household furniture, the property of the plaintiff; that the defendants thereupon sold and disposed of said property at public auction, to wit, on or about the 5th, 9th and 18th days of said March, and received therefor, upon such sales, certain sums of money, amounting in the whole to the sum of $763.61, and that the defendants thereupon demanded and received from the plaintiff the sum of $133.98 for their compensation for services and commissions on said sales ; and that the plaintiff" did not, previous to said sale, make any agreement with the defendants in regard to their compensation for services therein; and that said sum of $133.98 was not paid by virtue of a previous agreement between the plaintiff and said defendants, in regard to their compensation. That the sum of $133.98 so charged by the defendants, and so demanded of and reeived from the plaintiff, exceeded, by the -sum of $100, the amount to which the defendants were justly entitled oh such sale. That by reason of the premises, the defendants became indebted to the plaintiff in the amount of $350, and an action had accrued according to the provisions of section 36 of chapter 17, title 1, part 1, of the Revised Statutes of this State, and of section 23 of the act entitled “ Of sales by auctioneersfor which sum, with costs, the plaintiff demanded judgment.
    The defendants, by their answer, denied each and every of the allegationsr contained in the said" complaint, and every part thereof,- except the- allegation therein relating to the partnership and the business of the defendants, which they admitted. And for a further and separate answer to the said complaint, the defendants alleged that the property mentioned in the complaint was sold at public auction by the defendants, as auctioneers, under the authority and directions of one Henry Scott, who claimed to own said property by virtue of a certain chattel mortgage thereon, and that the proceeds arising from such sale, after deducting the commissions of the defendants, and sundry charges and expenses incurred and made in said sale, were paid and delivered by the defendants to the said Scott, by and with the assent of the ■ plaintiff; and the defendants alleged that the plaintiff was not entitled to maintain this action in her own name. And for a further and third answer to the complaint, the defendants . alleged that the supposed compensation for services and commissions, alleged in the complaint to have been charged and received by, the defendants, upon the sale or sales alleged therein to have been made by them, included the expenses and disbursements lawfully made and incurred for storage, printing, advertising and sundry other charges connected with said sales, as well as the legal commissions of the defendants therefor, and all of which said expenses, charges and disbursements they alleged they were lawfully entitled to demand and receive, over and above, and in addition to their said cemmissions.
    On the trial, an account of sales made by the defendants, as rendered to the plaintiff, was put in evidence. From this it appeared that the amount of sales was $701 35
    Commission and charges,.......70 13
    $621 22
    Government tax, . . ;.....• . 7 01
    $624 21
    Cartage,............ 50 00
    ■ $574 21
    When the plaintiff rested her case, the defendants’ counsel moved to dismiss the complaint upon the grounds: Mrst. That the bill put in evidence showed upon its face, that the amount retained by the defendants was not solely for commissions, but embraced other expenses connected with the employment of the defendants. That the presumption of law was in favor of the Iona fide conduct of the defendants, and not adverse to them ; and therefore the court should presume in this quasi criminal action, that the commissions whithheld were those allowed by statute, to wit, two and a half per cent; and that all in excess of that amount was for expenses legally chargeable to the plaintiff, and denominated in the bill as “ charges.” That the defendants were entitled to every presumption of the legality of their acts, and the onus was on the plaintiff to show the mala fides or illegality of the transaction.
    
      
      Second. That there was no proof before the court that the ' defendants were auctioners, under the statute, and subject •to the penalty sought to be imposed in this action.
    The motion was denied, and the defendants excepted.
    The defendants offered and read in evidence a check for $574.21 upon the Hanover National Bank, signed by the defendants, and dated March 14, 1867, payable to the order of, and indorsed by Henry Scott. Also, ■ the following receipt:
    “ Received, New York, March 14, 1867, from Miner & Somerville, five hundred and seventy-four dollars, in
    full for sale 594, less charges and commissions, as agreed, •as per statement below and account sales rendered.
    Henry Scott. '
    B. Russell.”
    Sale 594 ..... . $631 22
    Less government tax, '7 00
    $624 21
    Cartage,...... 50 0Ó
    $574 21
    When the testimony on both sides was closed, the de-" fendants renewed the motion to dismiss the complaint, upon the same grounds as herein .before stated, and also for that,
    
      First. The evidence clearly shows that the defendant Somerville was not an auctioneer, and consequently not amenable to the statute. That the complaint for that reason should be dismissed against both defendants, as it charged a joint malfeasance in office. That at any rate it should be dismissed as against the defendant Somerville, as he could not be held amenable to the section of the statute complained of, without being an auctioneer.
    
      Second. That the receipt, dated March 14,1867, showed conclusively that an agreement was entered into between the plaintiff and and defendants, before'the sale, as regards the rate of compensation they should receive, and was a sufficient compliance with the statute, requiring a greater rate than two and a half per cent, to be evidenced by a writing.
    - The motion was denied by the court, and the defendants excepted thereto.
    The jury rendered a verdict for the plaintiff for $302.85, and the defendants’ counsel made a motion for a new trial upon the minutes, which motion was denied by the court, and the defendants excepted thereto.
    And from the judgment entered upon the verdict, and the order denying a motion for a new trial, the defendants appealed.
    
      T. W. Burd, for the appellants.
    
      B. C. Thayer, for the respondent.
   By the Court, Cardozo, J.

I think the evidence of the disbursements and expenses, offered by the defendants’ counsel, was improperly excluded.

The statute, (1 R. S. 493, Edm. ed.) fixing the amount of an auctioneer’s compensation for his services, in the absence of an agreement in writing, at two and a half per cent on the amount of the sales, refers only to his services .as an auctioneer.

As was said in Leeds v. Bowen, (1 Rob. 10,) “ an auctioneer, aside‘from the statute, like 'any other factor, is bound, by his undertaking to sell goods, to take all such proper and incidental steps to insure a successful sale as are customary and necessary, and if, in performing those incidental duties, any expenses are incurred, such expenses' will be properly chargeable against the owner.” The ruling at the circuit deprived the defendants of the opportunity of showing that their charges for disbursements and expenses were within this rule. In the absence of a written agreement, their compensation for their services as auctioneers cannot exceed two and á half per cent; but what other charges for disbursements and expenses they may be entitled to, must depend upon what they did beyond the sphere of their duty as mere auctioneers, and upon what, as factors, it was right, reasonable and customary that they should, and did, do in respect to this class of property.

[First Department, General Term, at New York,

January 1, 1872.

There yet remains the question as to what is embraced in the term services, for which the compensation of two and a half per cent is prescribed by the statute. I am aware that in the case in 1 Robertson, (supra,) it is said that those services are not merely the offering of the goods for sale and striking them off. But I think that is a mistake; and that those services are alone what is to be compensated for by the statutory fee. There is nothing in the statute which shows that any construction was intended to be placed upon the words, beyond that which their natural and ordinary meaning imports. An “ auctioneer” is defined by Webster as a person who sells at auction; and an “ auction,” by the same authority, is a public sale of property to the highest bidder, by one licensed and authorized for that purpose. The services, therefore, which an auctioneer, as such, performs, aré “ selling property at public sale to the highest bidder.”' All else is beyond his mere calling as “auctioneer;” and it is only for services as “ auctioneer” that the compensation is given.

The judgment should be reversed, and a new trial ordered, costs to abide the event.

Ingraham, P. J., and Cardozo and Geo, G. Barnard, Justices.]  