
    Samuel D. Morris and Samuel S. Whitehouse, Respondents, v. The Brooklyn Heights Railroad Company, Appellant.
    
      Evidence — testimony as to a statement by the advisory counsel of a corporation (made at a date subsequent to a settlement) as to the terms of such settlement, not admissible as against the corporation.
    
    Upon the trial of an action brought against a railroad corporation to recover for services rendered by a firm of attorneys in the compromise of certain actions, the question was presented as to whether, by the terms of a settlement made on April 4, 1896, compensation for such services was included in a sum paid to the firm under such settlement. The firm proved by one Collin, an attorney, who together with one Lewis, at the time of the settlement, represented the railroad, that at a meeting held in July, 1896, between the parties who had conducted the settlement, a memorandum was produced by Lewis which was stated by him to have been made at the time of the settlement, which recited that the firm was to be paid the reasonable value of the services to be rendered by it in the compromise of the cases.
    
      Held, that as, at the time of the reading of the memorandum, Lewis was not acting in the discharge of any duty which he owed to the railroad in respect to the settlement of the claim, his declarations made at that time were inadmissible against the railroad, and that testimony as to the contents of the memorandum was inadmissible.
    Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the County Court of Kings county in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 23d day of March, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of April, 1897, denying the defendant’s motion for a new trial made upon the minutes. ■
    
      Jesse Johnson, for the appellant.
    
      Morris & Whitehouse, for the respondents.
   Per ■ Curiam :

In this action the plaintiffs, who are attorneys and counselors at law, have recovered $800 from the defendant for professional services rendered to that corporation in negotiating and bringing about the compromise and settlement of a • number of litigations. The defendant does- not deny that the services were performed, nor make any question as to their value; but on the present appeal it insists that errors were ¿ommitted. in the admission of evidence which demand a reversal of the judgment.

In the spring of .1896, when the plaintiffs ceased to be the attorneys of the defendant corporation, their claims against the company were adjusted largely through the instrumentality of Mr. Daniel E. Lewis, who was thdn in the employ of the corporation in an advisory ■capacity, and Mr. Charles A. Collin, one of its new counsel. Their negotiations were carried on principally with Mr. Whitehouse, one ■of the plaintiffs, and resulted in an adjustment under which the plaintiffs received a large sum of money. According to all the persons who directly participated in this adjustment, some agreement was made on the part of the plaintiffs in respect to such services as they might thereafter fender in regard to the settlement of suits then pending. As Mr. Lewis and Mr. Whitehouse remembér this agreement, it wias that the plaintiffs should be paid a reasonable ■compensation for silch services. According to Mr. Collin’s recollection, however, the arrangement did not contemplate any additional payment for what might subsequently be done by the plaintiffs in settling litigations.

The substantial question at issue between the parties in the present action, therefore, was whether the plaintiffs’ future services in the settlement of suits were paid for by the lump sum which "they received in the adjustment of their large account, or whether such services were to be the subject of separate compensation.

Upon.this issue it;was, of course, competent to show by the testimony of Messrs. Whitehouse, Lewis and Collin just what happened, according to their recollection, at the time of the adjustment of the large account, which seems to have been finally concluded on April 4, 1896.. The plaintiffs’ present claim for additional compensation became the subject of controversy about July, 1896, and there being a difference of recollection between, Mr. Whitehouse and Mr. Col- . lin as to what had occurred in April, these gentlemen went. to' the office of Mr. Lewis and conferred with him in respect to the terms of the original adjustment. On -the trial of the present action Mr. Collin was called by ¡the plaintiffs as a witness in their behalf, and .was examined in respect to this July interview. Being questioned in regard to what happened upon that occasion, he testified that Mr. Whitehouse told Mr. Lewis that he and the witness differed in their recollection of the terms of the settlement as to the services that were to be rendered by Morris & Whitehouse after the adjustment of April fourth, and that they would like to have him give his statement of the terms of that settlement as he remembered them. The witness then went on to say that Mr. Lewis produced a memorandum, stating that he had made it at the time, and proceeded to read from it. This memorandum thus read specified what the plaintiffs were to be paid for certain cases on appeal which they were to argue, and furthermore recited that for the services which the plaintiffs should perforin in regard to the settlement of cases they were to be paid a reasonable value. Mr. Collin testified also that he told Mr. Lewis that his recollection was that there was to be no charge for settling any case, but that the charge for future services was to be only where cases were argued by the plaintiffs in the Appellate Division. Mr. Whitehouse said to Mr. Lewis that his construction was substantially the same as that shown by the memorandum, whereupon Mr. Collin said that he would hardly expect to set up his memory against the memorandum of Mr. Lewis, but that was his recollection.

As we understand the objection and exception at folio 53 of the appeal book, they are broad enough to apply to all this evidence, and, if so, we think its reception was error for which the judgment must be reversed. At the time that Mr. Lewis was thus reading from his memorandum his own version of what took place between him and one of the plaintiffs several months before, he was not acting in the discharge of any duty in behalf of the defendant corporation in respect to the settlement of the plaintiffs’ claim. We can see no theory upon which this testimony was received as to the contents of this memorandum, unless it be that the reading of it was an admission or declaration by an agent of the corporation, which was made under such circumstances as to be binding upon it. But it was not thus made. There is not a word in the record to indicate that, at the time of this July interview, at which the contents of the memorandum were read, Mr. Lewis was even assuming to act for the Brooklyn Heights Railroad Company in reference to the plaintiffs’ claim. He was not engaged in any transaction on the part of the company, nor was he employed in any agency in its behalf which made his declarations admissible against the defendant. (Manhattan Life Ins. Co. v. Forty-second Street, etc., R. R, Co., 139 N. Y. 146, 151.)

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

All concurred, except Goodrich, P. J., not sitting.

Judgment reversed and new trial granted, costs to abide the event.  