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lieve. On the other hand, the proof adduced Such is the finding of the State Industrial in behalf of the plaintiff was sufficient to Commission. The term "salesman," however, warrant a finding that the decedent was a is not accurately descriptive of the whole of mere employé of the defendant corporation his duties, for the Commission has found, which undertook to furnish him with safe further, that:

"As a salesman his duties were to inspect the 串 The conclu- machinery at the plant. ** It was cus

scaffolding upon which to perform his work and negligently failed to do so.

sion to be reached depended upon the credit which should be given to the several witnesses and the inferences to be drawn from their testimony, and from the somewhat ambiguous documentary evidence in the case; but it was a conclusion which the court should have allowed the jury to draw, instead of disposing of the case as matter of law.

tomary for him, while going the rounds of the
to inspect the machinery already installed and
different manufacturing plants soliciting orders,
listen to any complaints or suggestions which
might be made by the persons who were using
H. Fraser, his employer."
machinery which had been bought from George

In other words, he was an inspector as well as a seller of machinery. The manufacture of machinery is classified as a hazardous For this reason it was error to dismiss the employment under section 2, group 21, in the complaint. The judgment should be revers-Workmen's Compensation Law (Consol. Laws,

ed, and a new trial granted, with costs to abide the event.

WILLARD BARTLETT, C. J., and CHASE, COLLIN, CUDDEBACK, CARDOZO, and POUND, JJ., concur.

Judgment reversed, etc.

(219 N. Y. 210)

BENTON v. FRASER et al.
(Court of Appeals of New York. Oct. 31, 1916.)
MASTER AND SERVANT 361 WORKMEN'S
COMPENSATION LAW-HAZARDOUS EMPLOY-
MENT "MANUFACTURE. ""

A salesman of a manufacturer of machinery whose duties require him to inspect it generally, and who does inspect it after it is set up and in operation, during which inspection he is injured by the fall of a piece of it, may be regarded as employed in the "manufacture" of machinery, classified by Workmen's Compensation Law (Consol. Laws, c. 67) under section 2, group 20, of hazardous employments.

[Ed. Note.-For other cases, see Master and Servant, Dec. Dig. 361.

For other definitions, see Words and Phrases, First and Second Series, Manufacture.]

c. 67). It may well be that a salesman employed by a manufacturer of machinery simply and solely to sell his products, and who never had anything to do with the machinery in operation or the process of manufacture, would not be entitled to the benefits of the act; but when such an employé performs functions which bring him into direct contact with the machinery itself, even when in operation, he may be as much exposed to danger as any workman, and I think his case falls within the letter and spirit of the statute.

The respondent was sent by his employer to the plant of the Atlas Portland Cement Company (to which he had sold some machinery) at Northampton, Pa., "and while he was present at a demonstration of the operation of that machinery," a piece of it fell upon his foot and occasioned injuries which required the amputation of a portion of the great toe. The State Industrial Commission has awarded him compensation at the rate of $15 a week for 38 weeks, on the ground that this injury arose out of and in the course of his employment. We are asked to reverse this award because: (1) The respondent was

Appeal from Supreme Court, Appellate Di- not engaged in a hazardous employment; vision, Third Department. and (2) because he was not engaged in any In the matter of the claim of John Freder-hazardous work at the time of the accident. ick Benton for compensation under the Work- I think neither of these objections to the demen's Compensation Law against George H. cision of the Commission is well taken. The Fraser, employer, and the Zurick General Ac-manufacture of machinery is declared to be cident & Liability Insurance Company, Lim- a hazardous employment by the express lanited, insurance carrier. Appeal by permission from an order of the Appellate Division (156 N. Y. Supp. 1115) affirming an award of the State Industrial Commission for an injury to the employé's foot. Affirmed.

John N. Carlisle, of Albany, for appellants. Egburt E. Woodbury, Atty. Gen. (E. C. Aiken, Asst. Atty. Gen., of counsel), for respondent.

guage of the Workmen's Compensation Act itself; and an employé of a person engaged in such manufacture, whose duty it is to inspect the machinery which he has sold and who customarily does so after it is put in place at the different plants where it has been installed, is engaged in the hazardous employment of his master. That the work actually was hazardous in the present instance would seem to be sufficiently indicated by the occurrence of the accident.

WILLARD BARTLETT, C. J. The respondent, when injured, was employed as a Our attention is called to Matter of Wilsalesman by George H. Fraser, of Brook- son v. Dorflinger & Sons, 218 N. Y. 84, 112 lyn, who was there engaged in the business N. E. 567, in which it was held that the busiof manufacturing and selling machinery.ness of selling glassware, carried on by the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

firm against which the claim was made, was not included in group 20 of the Workmen's Compensation Law, which covers the manufacture of glass, glass products, glassware, porcelain and pottery. That case, however, involved no such question as that presented here, which is whether a salesman employed by a manufacturer of machinery, whose duties require him to inspect it generally, and who does inspect it after it is set up and in operation, may not be regarded as employed in the manufacture of machinery, one of the employments pronounced hazardous by the statute. In the Wilson Case, the selling of glassware was an independent business, wholly separated from the manufacture of the product.

pliances for the correction and cure of such deformities."

The complaint alleges:

"Fourth. That in carrying on its said business defendant had in its employ, and maintained a staff of servants, clerks, specialists, and other aminations of the patrons and patients and to employés, including one Otto Eisen, to make exfit such appliances, and in and about its said place of business it had private rooms or booths, in which such examinations and fittings were made by its said employés and specialists. "Fifth. That on or about October 3, 1914, plaintiff called at defendant's said place of business to employ defendant to treat her feet and prescribe for and to fit upon her certain braces or appliances for the care, cure, and correction of the defects and injuries to her feet from which she was at the time suffering, and defendant then and there accepted such employment, and directed said Otto Eisen, one of its em

I advise the affirmance of the order ap- ployés as aforesaid, to examine plaintiff for pealed from, with costs.

HISCOCK, CHASE, COLLIN, CUDDEBACK, HOGAN, and CARDOZO, JJ., concur,

Order affirmed.

(219 N. Y. 205)

STONE v. WILLIAM M. EISEN CO. (Court of Appeals of New York. Oct. 31, 1916.) CORPORATIONS 423-LIABILITY FOR SERVANT'S TORT-COMPANY EMPLOYING SERV ANT TO TAKE MEDICAL EXAMINATION.

Where a corporation making and selling medical and surgical appliances and diagnosing and prescribing for persons suffering with injured or deformed feet or limbs placed a patient in its employé's charge for examination, thus subjecting her to an exposure of her limbs as an incident of the employment, it was responsible for its employé's indecent treatment of her and answerable for any failure on his part to conduct himself as it impliedly contracted he would conduct himself when the employment was accepted and entered upon.

[Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 1692-1695; Dec. Dig. 423.] Appeal from Supreme Court, Appellate Division, First Department.

Action by Orpha Stone against the William M. Eisen Company. From an order of the Appellate Division (159 N. Y. Supp. 1144), affirming an order of the New York Special Term denying defendant's motion for judgment on the pleadings, defendant appeals by permission, and the Appellate Division certifies a question of law. Order affirmed, and question certified answered in the affirmative.

Edwin M. Otterbourg, of New York City, for appellant. Joab H. Banton, of New York City, for respondent.

such purpose.

"Sixth. That in making such examination, said Otto Eisen, in the course of his said employment as aforesaid, then and there required and directed plaintiff to enter and occupy one of defendant's said private consultation or examination rooms during such examination, and in which said consultation room said Otto Eisen was the only other occupant.

"Seventh. That plaintiff is a young married woman, and is and was inexperienced and ignorant of the method of treatment of such injuries and ailments as those with which she was at the time suffering, and trusted implicitly in the skill and integrity of defendant's said such diagnosis and examination of her person specialists, servants, and other employés to take as was necessary to properly treat her feet. "Eighth. That while making such examination plaintiff was directed by said Otto Eisen, defendant's employé, to recline upon the operating table and to bare or expose her lower limbs, and thereupon said Otto Eisen began rubbing and feeling her lower limbs and the lower portion of her body, which were at the time exposed to the view of said Otto Eisen in accordance with his directions.

"Tenth. That notwithstanding the protests of plaintiff at which she deemed the unusual and unnecessary examination being made by the said Otto Eisen, he continued to rub and otherwise handle the lower portion of plaintiff's body all the while having plaintiff in a reclining position on the table, with her clothing drawn up over her body and face, thereby exposing the lower portion of her body and lower limbs, when said Otto Eisen then and there feloniously assaulted plaintiff by laying his hands upon her and with his hands held her on the table and attempted to have and hold sexual intercourse with plaintiff."

It is true as claimed that the defendant's business was private. It was not required to accept the plaintiff for examination and treatment or for the fitting of curative and corrective braces and appliances for her defective feet. It, however, did accept such employment. The employment, and the work to be performed pursuant thereto, was confidential. The defendant, as is alleged, provided a private room, and assigned the plain

CHASE, J. The defendant is a domestic tiff thereto with one of its employés, knowing corporation

"engaged in the business of making, buying, and selling medical and surgical appliances and implements and in diagnosing, treating, and prescribing for persons suffering with injured or deformed feet or limbs, and in furnishing ap

that it would be necessary for her to some extent to expose her limbs to his view and examination. Where a person so enters into an agreement with a corporation and submits to an examination pursuant to such

[Ed. Note.-For other cases, see Habeas Corpus, Cent. Dig. § 100; Dec. Dig. 111(1).] Appeal from Supreme Court, Appellate Division, Third Department.

agreement, there is an implied contract that his liberty, and entitled to be discharged," apthe patient will be treated, not only skillfully,parently made as a matter of right on the ground but decently, respectfully, and courteously. that the prisoner was sane, providing that the prisoner should not go into the state of MassaDecent and respectful treatment is implied chusetts, and should report at specified interin the contract from the confidential relation vals, either personally or in writing, to a perof the parties, and especially because of the son named by the court, and that if he disobeyed necessary exposure of the person required of such provisions the judge making it might vacate it and recommit him without further hearthe patient in connection with the services ing, notwithstanding the prisoner's consent, was to be performed pursuant to the contract. erroneous and illegal, since it was contradictory, The implication arises whenever one person ambiguous, and indecisive. is placed in the control or protection of another. It grows out of peculiar and special relationships. It has been applied between carrier and passenger as stated in Stewart v. Brooklyn & Crosstown R. R. Co., 90 N. Y. 588, 43 Am. Rep. 185, and in Gillespie v. Brooklyn Heights R. R. Co., 178 N. Y. 347, 70 N. E. 857, 66 L. R. A. 618, 102 Am. St. Rep. 503, and cases cited. It has also been applied between innkeeper and guest. De Wolf v. Ford, 193 N. Y. 397, 86 N. E. 527, 21 L. R. A. (N. S.) 860, 127 Am. St. Rep. 969, and It applies between bathhouse keepers and their patrons (Aaron v. Ward, 203 N. Y. 351, 96 N. E. 736, 38 L. R. A. [N. S.] 204), and private hospitals and their patients (Hogan v. Clarksberg Hospital Co., 63 W. Va. 84, 59 S. E. 943-945; Louisville University v. Hammock, 127 Ky. 564, 106 S. W. 219, 14 L. R. A. [N. S.] 784, 128 Am. St. Rep. 355). See, also, Schloendorff v. New York Hospital, 211 N. Y. 125, 105 N. E. 92, 52 L. R. A. (N. S.) 505, Ann. Cas. 1915C, 581, and Hannon v. Siegel-Cooper Co., 167 N. Y. 244, 246, 60 N. E. 597, 52 L. R. A. 429.

cases cited.

Habeas corpus by the People of New York, on the relation of Edward B. Savage, against Richard H. Hutchings, as Superintendent of the St. Lawrence State Hospital for the Insane, the Hood Rubber Company, and others. From an order of the Appellate Division in the Third Judicial Department (156 N. Y. Supp. 1140), entered January 13, 1916, affirming an order of the Special Term discharging Fred W. Savage from the custody of Richard H. Hutchings, as Superintendent of the St. Lawrence State Hospital for the Insane, and from detention under a commitment to that institution, defendants appeal. Orders of Appellate Division and of Special Term reversed, and proceeding dismissed without prejudice.

Daniel J. Kenefick, of Buffalo, for appellants. Harold H. Corbin, of Saratoga Springs, and C. Bertrand Race, of Albany, for respondent.

COLLIN, J. In May, 1914, Fred W. Savage was an inmate of the St. Lawrence State Hospital for the Insane by virtue of a commitment, as provided by the Insanity Law This proceeding was institut

of the state.

As the defendant knowingly put the plaintiff in its employé's immediate and exclusive presence and then subjected her to an exposure of her limbs as an incident to the employment, it is responsible for his treatment of her and answerable for any failure on his part to conduct himself as the defendant impliedly contracted that he would conducted by the petition of the relator, alleging himself when the employment was accepted that Fred W. Savage was sane and entitled and entered upon. Cohen v. D. D., E. B. & to his liberty, and the writ of habeas corpus B. R. R. Co., 69 N. Y. 170, 173. issued to the superintendent of that institution in accordance with the prayer of the petition. The return to the writ alleged that Fred W. Savage was insane. The return was traversed, and an extended hearing concern

The order should be affirmed, with costs, and the question certified answered in the affirmative.

WILLARD BARTLETT, C. J., and HIS-ing the sanity of said Savage was had. The COCK, CUDDEBACK, HOGAN, CARDOZO, and POUND, JJ., concur.

Order affirmed.

(219 N. Y. 200)

PEOPLE ex rel. SAVAGE v. HUTCHINGS,
Superintendent of St. Lawrence State

Hospital for Insane, et al.
(Court of Appeals of New York. Oct. 24, 1916.)
HABEAS CORPUS 111(1)-DISCHARGE OF IN-
SANE PERSON-ORDER-VALIDITY.

An order discharging a person from the custody and detention under commitment to a state hospital for the insane, on the ground that he was "unlawfully imprisoned and restrained in

final order, apart from the usual and formal recitals and an immaterial provision, is as follows:

"And it appearing to my satisfaction that said Fred W. Savage, the prisoner, is unlawfully imprisoned and restrained in his liberty, and is entitled to be discharged, and that the justice of the case requires his discharge, and the counsel for the relator and the prisoner having consented that, if a discharge should be granted, a provision be inserted in the order that said prisoner where said Hood Rubber Company, its officers shall not go into the state of Massachusetts, and employés, reside, and shall report at specified intervals, either personally or in writing, to a person to be named by me, and it appearing to my satisfaction from the testimony that such a provision in the order will be a sufficient restraining influence upon said Fred W. Savage,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

and that he will observe and comply with such | This order apparently adjudged that the prisprovisions, * * * it is ordered that the said oner is sane. Fred W. Savage be and he hereby is forthwith consents, thereby declaring, through impliIt is based, in part, upon his discharged from the custody of Richard H.

Hutchings, as superintendent of the St. Law- cation, that he is sane, and yet accepts rence State Hospital for the Insane, and from his consent as a restraining influence, and further detention under and by virtue of the makes provision for his summary and arbicommitment of the surrogate of Washington coun

ty, made on the 20th day of February, 1911; trary imprisonment in case he violates his and it is further ordered that the said Fred consent. As an adjudication it is contradicW. Savage shall not hereafter enter the state tory, ambiguous, and indecisive, and it is in of Massachusetts for any purpose, and that he part, at least, void. It is apparent, furthershall report once every month to C. Bertrand Race, Esq., of Albany, N. Y., either personally more, from the provisions of the order, that or in writing; and, the relator and prisoner con- the consents of the prisoner may have had senting, it is further ordered that if the forego- and probably did have a material influence ing directions, or either of them are violated and persuasion toward the making of the by said Fred W. Savage, without good reason, or order. It states, expressly, that the discharge willfully, then the judge making this order, or any other Supreme Court Justice of the Fourth is based in part upon them. Bearing in mind Judicial District, may, in his discretion, vacate that the discharge was ordered as a legal this order and recommit him forthwith to the right of the prisoner, it is clear that the St. Lawrence Hospital for the Insane, with or consents were irrelevant, and should have without any further hearing; and it is further ordered that the said Fred W. Savage may, after been wholly disregarded by the court. the expiration of two years from the date hereof, ties litigant have and should be awarded the apply at the foot hereof for such modification of right to be clearly and accurately informed this order or for such relief as he may be ad- by the judgment, order, or process of the court as to what the court did in fact decide and adjudge, and to have the adjudications rest upon legal grounds.

vised."

The Appellate Division, by a decision not unanimous, affirmed the order. The order is erroneous and illegal. It in form discharges

the prisoner from the custody and detention provided by the commitment, because, as stated by the recital, he was "unlawfully imprisoned and restrained in his liberty and is entitled to be discharged." It is manifest that it was not granted in the exercise of a discretion, but as a matter of right. Inasmuch as it states that the imprisonment was unlawful, and orders the discharge as a matter of right, it seemingly decides and adjudges that the prisoner was sane. The fact that he was sane is essential to its validity and correctness. The provisions of the order, however, declare in substance and in their operation and effect that he was not sane, and was insane. The provision that, in case he willfully or without reason violated either of the directions of the order, "the judge making this order, or any other Supreme Court Justice of the Fourth Judicial District, may, in his discretion, vacate this order and recommit him forthwith to the St. Lawrence State Hospital for the Insane, with or without any further hearing," wholly lacks justification or authority in case he was sane. His consent did not supply any authority or justification. It is obvious, beyond the need of discussion, that the court could not, with or without his consent, order that he, as a sane person, be committed for any reason to an institution, state or private, for the insane.

Of a like though less forceful import is the statement in the order that the prohibition to the prisoner of going into the state of Massachusetts will, as appears to the satisfaction of the court from the testimony, "be a sufficient restraining influence upon said Fred W. Savage, and that he will observe and comply with such provisions."

Par

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A client may, at any time, with or without reason, discharge his attorney.

and Client, Cent. Dig. 88 120-124, 126; Dec.
[Ed. Note.-For other cases, see Attorney
Dig. 76(1).]

2. ATTORNEY AND CLIENT 134(1)
PENSATION-CONTRACT FOR SERVICES.

COM

Upon discharge of attorney by his client, the client is liable to pay the attorney only for the reasonable value of his services rendered by him up to the time of the discharge, and the client is not liable for damages for breach of the contract because of such discharge, where the attorney, in entering into a contract of employment with the client, has not changed his position or incurred expense, or where his employment is not under a general retainer for a fixed period in relation to the matters that may arise during the period of the contract. [Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. §§ 301, 302; Dec. Dig. 134(1).]

3. LIMITATION OF ACTIONS 50(3)—ACCRUAL OF RIGHT-CONTINUING CONTRACTS-ATTORNEY'S SERVICES.

The statute of limitations does not begin to run against an attorney's claim for services under his contract with his client until the final

service has been performed; the contract being | ferentiate it from ordinary contracts of eman entire and continuous one.

ployment. In ascertaining the nature of [Ed. Note. For other cases, see Limitation such a contract little assistance is to be deof Actions, Cent. Dig. § 275; Dec. Dig. 50(3).]

4. LIMITATION OF ACTIONS 50(3)-ACCRUAL OF RIGHT-IMPLIED CONTRACT-ATTORNEY'S SERVICES-UPON DISCHARGE.

rived from the consideration of analogous contracts under the English common law. In the early case of Adams v. Stevens, 26 Wend. 451, 455, the whole subject was Where an attorney, employed under a con- learnedly discussed by Chancellor Walworth. tract making his compensation contingent upon After commenting upon the practice existing the result, is discharged by his client, his cause of action for compensation accrues, and the under the civil and common law the chancelstatute of limitation begins to run at the time lor said:

of discharge, although if not discharged his "Whatever may be the practice of other councause of action would not accrue until the mak-tries, however, the principle never has been ing of the award. adopted in this state that the professions of

[Ed. Note.--For other cases, see Limitation physicians and counsellors are merely honorary, of Actions, Cent. Dig. § 275; Dec. Dig. 50(3).]

Appeal from Supreme Court, Appellate Division, Second Department.

Action by James G. Martin against Hugh N. Camp, Jr., as executor, and another. From a judgment of the Appellate Division (161 App. Div. 610, 146 N. Y. Supp. 1041), affirming a judgment of the Special Term for plaintiff, the defendant named appeals. Reversed.

George Edwin Joseph, of New York City (Henry C. Quinby, of New York City, of counsel), for appellant. Barclay E. V. McCarty, of New York City, for respondent.

and that they are not of right entitled to demand and receive a fair compensation for their services; especially where there is an agreement to pay them a fixed compensation, or such a reasonable remuneration for their services as those services shall be deemed to be worth."

Substantially the view which Chancellor Walworth expressed is now embodied in statute form in section 474 of the Judiciary Law. Cons. Laws, c. 30. That section provides that:

"The compensation of an attorney or counsellor for his services is governed by agreement, express or implied, which is not restrained by law."

Notwithstanding the fact that the employIment of an attorney by a client is governed by the contract which the partles make, SEABURY, J. This is an action by the the peculiar relation of trust and confidence assignee of a firm of attorneys and counsel that such a relationship implies injects into ors at law to recover damages for the breach the contract certain special and unique feaof a contract of professional employment. tures. In Marsh v. Holbrook, 3 Abb. Dec. The plaintiff's assignors were retained by 176, the question whether an attorney could the appellant's testator to recover an award recover upon a quantum meruit merely or in condemnation proceedings. The contract might recover in an action for damages for stipulated that the compensation to be paid breach of contract was discussed. Two memshould be contingent upon success and fixed bers of the court who participated in the dethe sum that was to be paid in event of suc- cision of that case were of the opinion that cess as a proportion of the amount recovered. the attorney was entitled to recover the The plaintiff's assignors rendered substan- whole contract price. The question was not, tial services under their contract, and were however, determined, Judge Woodruff pointdischarged by the appellant without cause. ing out that the question was not necessarily The first question which we are called upon before the court as the attorney had not apto determine is whether an attorney employ- pealed from the judgment. Since the decied for a single litigation, who is dismissed sion of that case the nature of the contract by his client without cause, may maintain an existing between attorney and client has action for damages for the breach of that been the subject of frequent discussion. contract, or whether he is limited to a recov- Matter of Dunn, 205 N. Y. 398, 98 N. E. ery based upon a quantum meruit. The 914, Ann. Cas. 1913E, 536, and cases cited; learned Appellate Division were not in agree- Andrewes v. Haas, 214 N. Y. 255, 259, 108 ment upon this question, although the major-N. E. 423. These cases, and many others ity were of the opinion that an action for that might appropriately be cited to the same damages might be maintained under such circumstances. While the precise question has not been determined by this court, the nature and character of the contract of employment of an attorney by a client has been clearly defined. It is evident that the question now presented for decision must be determined in accord with the legal principles which define the nature and character of such a contract. The contract under which an attorney is employed by a client has peculiar and distinctive features which dif

effect, establish that while so far as the at

torney is concerned the contract is entire and the attorney cannot recover unless he completely performs, the client with or without cause may terminate the contract at any time. The substance of the rule declared in these cases was expressed by Judge Hiscock in Matter of Dunn, supra. In that case it

was said:

"It is well established in the case of the client that he may at any time for any reason which seems satisfactory to him, however ar

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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