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liere. 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: scaffolding upon which to perform his work "As a salesman his duties were to inspect the and negligently failed to do so. The conclu- machinery at the plant. *

It was cussion to be reached depended upon the credit tomary for him, while going the rounds of the

different manufacturing plants soliciting orders, which should be given to the several wit- to inspect the machinery already installed and nesses and the inferences to be drawn from listen to any complaints or suggestions which their testimony, and from the somewhat am- might be made by the persons who were using biguous documentary evidence in the case; machinery which had been bought from George

H. Fraser, his employer." but it was a conclusion wbich the court should have allowed the jury to draw, in In other words, he was an inspector as well stead of disposing of the case as matter of as a seller of machinery. The manufacture law.

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 c. 67). It may well be that a salesman emabide the event.

ployed by a manufacturer of machinery sim

ply and solely to sell his products, and who WILLARD BARTLETT, C. J., and never had anything to do with the machinCHASE, COLLIN, CUDDEBACK, CARDO-ery in operation or the process of manufacZo, and POUND, JJ., concur.

ture, would not be entitled to the benefits

of the act; but when such an employé perJudgment reversed, etc.

forms functions which bring him into direct contact with the machinery itself, even when

in operation, he may be as much exposed (219 N. Y. 210)

to danger as any workman, and I think his BENTON V. FRASER et al.

case falls within the letter and spirit of the (Court of Appeals of New York. Oct. 31, 1916.) statute. MASTER AND SERVANT 361 WORKMEN'S

The respondent was sent by his employ. COMPENSATION LAW-HAZARDOUS EMPLOY.

er to the plant of the Atlas Portland Cement MENT—"MANUFACTURE.”

Company (to which he had sold some machinA salesman of a manufacturer of machinery ery) at Northampton, Pa., "and while he was whose duties require him to inspect it generally, and who does inspect it after it is set up and present at a demonstration of the operation in operation, during which inspection he is in- of that machinery,” a piece of it fell upon jured by the fall of a piece of it, may be re- his foot and occasioned injuries which requirgarded as employed in the “manufacture” ofed the amputation of a portion of the great machinery, classified by Workmen's Compensa- toe. The State Industrial Commission has tion Law (Consol. Laws, c. 67) under section 2, awarded him compensation at the rate of group 20, of hazardous employments.

(Ed. Note.-For other cases, see Master and $15 a week for 38 weeks, on the ground that Servant, Dec. Dig. 361.

this injury arose out of and in the course of For other definitions, see Words and Phrases, his employment. We are asked to reverse First and Second Series, Manufacture.)

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 de men'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 permis- guage of the Workmen's Compensation Act sion from an order of the Appellate Division itself; and an employé of a person engaged (156 N. Y. Supp. 1115) affirming an award of in such manufacture, whose duty it is to inthe State Industrial Commission for an inspect the machinery which he has sold and jury to the employé's foot. Affirmed.

who customarily does so after it is put in John N. Carlisle, of Albany, for appellants. place at the different plants where it has Egburt E. Woodbury, Atty. Gen. (E. C. been installed, is engaged in the hazardous Aiken, Asst. Atty. Gen., of counsel), for re employment of his master. That the work spondent.

actually was hazardous in the present in

stance would seem to be sufficiently indicated WILLARD BARTLETT, C. J. The re- | by the occurrence of the accident. spondent, when injured, was employed as a Our attention is called to Matter of Wil. salesman 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 wbich it was held that the busiof manufacturing and selling machinery. I ness of selling glassware, carried on by the

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

was

firm against which the claim was made, was | pliances for the correction and cure of such de not included in group 20 of the Workmen's formities." Compensation Law, which covers the manu The complaint alleges: facture of glass, glass products, glassware, "Fourth. That in carrying on its said business porcelain and pottery. That case, however, defendant had in its employ, and maintained a involved no such question as that presented staff of servants, clerks, specialists, and other here, which is whether a salesman employed aminations of the patrons and patients and to

employés, including one Otto Eisen, to make ex. by a manufacturer of machinery, whose du- fit such appliances, and in and about its said ties require him to inspect it generally, and place of business it had private rooms or booths, who does inspect it after it is set up and in in which such examinations and fittings were operation, may not be regarded as employed made by its said employés and specialists.

“Fifth. That on or about October 3, 1914, in the manufacture of machinery, one of the plaintiff called at defendant's said place of busi. employments pronounced hazardous by the ness to employ defendant to treat her feet and statute. In the Wilson Case, the selling of prescribe for and to fit upon her certain braces glassware an independent business, of the defects and injuries to her feet from

or appliances for the care, cure, and correction wholly separated from the manufacture of wbich she was at the time suffering, and defendthe product.

ant then and there accepted such employment, I advise the affirmance of the order ap- and directed said. Otto Eisen, one of its em

ployés as af said, to examine plaintiff for pealed from, with costs.

such purpose.

"Sixth. That in making such examination, said HISCOCK, CHASE, COLLIN, CUDDE- Otto Eisen, in the course of bis said employ. BACK, HOGAN, and CARDOZO, JJ., concur, directed plaintiff to enter and occupy one of de

ment as aforesaid, then and there required and

fendant's said private consultation or examinaOrder affirmed.

tion 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 (219 N. Y. 205)

woman, and is and was inexperienced and ig. STONE v. WILLIAM M. EISEN CO.

norant of the method of treatment of such in.

juries and ailments as those with which she Court of Appeals of New York. Oct. 31, 1916.) I was at the time suffering, and trusted implicitly CORPORATIONS ww 423–LIABILITY FOR SERV- in the skill and integrity of defendant's said

ANT'S TORT - COMPANY EMPLOYING SERV specialists, servants, and other employés to take ANT TO TAKE MEDICAL EXAMINATION.

such diagnosis and examination of her person Where a corporation making and selling

as was necessary to properly treat her feet. medical and surgical appliances and diagnosing tion plaintiff was directed by said Otto Eisen,

"Eighth. That while making such examina. and prescribing for persons suffering with injur- defendant's employé, to recline upon the oped or deformed feet or limbs placed a patient in erating table and to bare or expose her lower its employé's charge for examination, thus sub- limbs, and thereupon said Otto Eisen began jecting her to an exposure of her limbs as an rubbing and feeling her lower limbs and the incident of the employment, it was responsible lower portion of her body, which were at the for its employé's indecent treatment of her and time exposed to the view of said Otto Eisen in answerable for any failure on his part to con; accordance with his directions. duct himself as it impliedly contracted he would

“Tenth. That notwithstanding the protests of conduct himself when the employment was ac- plaintiff at which she deemed the unusual and cepted and entered upon.

unnecessary examination being made by the said (Ed. Note.--For other cases, see Corporations, Otto Eisen, he continued to rub and otherwise Cent. Dig. $8 1692–1695; Dec. Dig. Ow423.] handle the lower portion of plaintiff's body all

the while having plaintiff in a reclining position Appeal from Supreme Court, Appellate on the table, with her clothing drawn up over Division, First Department

her body and face, thereby exposing the lower Action by Orpha Stone against the Wu- portion of her body and lower limbs, when said

Otto Eisen then and there feloniously assaulted liam M. Eisen Company. From an order of plaintiff by laying his hands upon her and with the Appellate Division (159 N. Y. Supp. 1144), his hands held her on the table and attempted affirming an order of the New York Special to have and hold sexual intercourse with plain

tiff." Tern denying defendant's motion for judgment on the pleadings, defendant appeals

It is true as claimed that the defendant's by permission, and the Appellate Division business was private. It was not required certifies a question of law. Order affirmed, to accept the plaintiff for examination and and question certified answered in the at treatment or for the fitting of curative and firmative,

corrective braces and appliances for her de

fective feet. It, however, did accept such Edwin M. Otterbourg, of New York City, employment. The employment, and the work for appellant. Joab H. Banton, of New to be performed pursuant thereto, was conYork City, for respondent.

fidential. The defendant, as is alleged, pro

vided a private room, and assigned the plainCHASE, J. The defendant is a domestic tiff thereto with one of its employés, knowing corporation

that it would be necessary for her to some "engaged in the business of making, buying, and extent to expose her limbs to his view and selling medical and surgical appliances and im- examination. Where a person so enters into plements and in diagnosing, treating, and prescribing for persons suffering with injured or an agreement with a corporation and subdeformed feet or limbs, and in furnishing ap- mits to an examination pursuant to such

agreement, there is an implied contract that his liberty, and entitled to be discharged," ap: the 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 contidential relation vals, either personally or in writing, to a per. of 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 va

cate 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 an [Ed. Note.--For other cases, see Habeas Corother. It grows out of peculiar and special pus, Cent. Dig. $ 100; Dec. Dig. Om 111(1).] relationships. It has been applied between

Appeal from Supreme Court, Appellate carrier and passenger as stated in Stewart Division, Third Department. v. Brooklyn & Crosstown R. R. Co., 90 N.

Habeas corpus by the People of New York, Y. 588, 43 Am. Rep. 185, and in Gillespie v.

on the relation of Edward B. Savage, against Brooklyn Heights R. R. Co., 178 N. Y. 347, Richard H. Hutchings, as Superintendent of 70 N. E. 857, 66 L. R. A. 618, 102 Am. St. Rep. the St. Lawrence State Hospital for the In503, and cases cited. It has also been ap- sane, the Hood Rubber Company, and others. plied between innkeeper and guest. De Wolf From an order of the Appellate Division in v. Ford, 193 N. Y. 397, 86 N. E. 527, 21 L. the Third Judicial Department (156 N. Y. R. A. (N. S.) 860, 127 Am. St. Rep. 969, and Supp. 1140), entered January 13, 1916, afirmcases cited. It applies between bathhouse ing an order of the Special Term dischargkeepers and their patrons (Aaron v. Ward, ing Fred W. Savage from the custody of 203 N. Y. 351, 96 N. E. 736, 38 L. R. A. [N. Richard H. Hutchings, as Superintendent S.) 204), and private hospitals and their of the St. Lawrence State Hospital for the patients (Hogan v. Clarksberg Hospital Co., Insane, and from detention under a commit63 W. Va. 84, 59 S. E. 943–945; Louisville ment to that institution, defendants appeal. University v. Hammock, 127 Ky. 564, 106 S. Orders of Appellate Division and Special W. 219, 14 L. R. A. (N. S.) 784, 128 Am. St. Rep. Term reversed, and proceeding dismissed 355). See, also, Schloendorff v. New York without prejudice. Hospital, 211 N. Y. 125, 105 N. E. 92, 52 L. R. A. (N. S.) 505, Ann. Cas. 1915C, 581, and

Daniel J. Kenefick, of Buffalo, for appel

lants. Harold Hannon v. Siegel-Cooper Co., 167 N. Y. 244, Springs, and C. Bertrand Race, of Albany,

H. Corbin, of Saratoga 246, 60 N. E. 597, 52 L. R. A. 429. As the defendant knowingly put the plain

for respondent. tiff in its employé's immediate and exclusive presence and then subjected her to an ex

COLLIN, J. In May, 1914, Fred W. Savposure of her limbs as an incident to the em- age was an inmate of the St. Lawrence State ployment, it is responsible for his treatment Hospital for the Insane by virtue of a comof her and answerable for any failure on his mitment, as provided by the Insanity Law part to conduct himself as the defendant of the state. This proceeding was institutimpliedly contracted that he would conduct ed 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 instituThe order should be affirmed, with costs, tion in accordance with the prayer of the and the question certified answered in the petition. The return to the writ alleged that affirmative.

Fred W. Savage was insane. The return was

traversed, and an extended hearing concernWILLARD BARTLETT, C. J., and HIS-ing the sanity of said Savage was had. The COOK, CUDDEBACK, HOGAN, CARDOZO, final order, apart from the usual and formal and POUND, JJ., concur.

recitals and an immaterial provision, is as

follows: Order affirmed.

"And it appearing to my satisfaction that said Fred W. Savage, the prisoner, is unlawfully im

prisoned and restrained in his liberty, and is en(219 N. Y, 200)

titled to be discharged, and that the justice of PEOPLE ex rel. SAVAGE V. HUTCHINGS, for the relator and the prisoner having consented

the case requires his discharge, and the counsel Superintendent of St. Lawrence State that, if a discharge should be granted, a proviHospital for Insane, et al.

sion be inserted in the order that said prisoner (Court of Appeals of New York. Oct. 24, 1916.) where said Hood Rubber Company, its officers

shall not go into the state of Massachusetts, HABEAS CORPUS Om111(1)-DISCHARGE OF IN- and employés, reside, and shall report at speciSANE PERSON-ORDER-VALIDITY.

fied intervals, either personally or in writing, to An order discharging a person from the cus- a person to be named by me, and it appearing to tody and detention under commitment to a state my satisfaction from the testimony that such a hospital for the insane, on the ground that he provision in the order will be a sufficient re was "unlawfully imprisoned and restrained in straining 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. It is based, in part, upon his Fred W. Savage be and he hereby is forth with consents, thereby declaring, through implidischarged 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 county, 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. Par. 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 vised."

court as to what the court did in fact deThe Appellate Division, by a decision not cide and adjudge, and to have the adjudicaunanimous, affirmed the order. The order is tions rest upon legal grounds. erroneous and illegal. It in form discharges the prisoner from the custody and detention appellate Division and that of the Special

For the reasons stated, the order of the provided by the commitment, because, as Term should be reversed, without costs, and stated by the recital, he was "unlawfully the proceeding dismissed, but without prejuimprisoned and restrained in his liberty and dice to a new proceeding. 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. Inas- DEBACK, HOGAN, and POUND, JJ., con

WILLARD BARTLETT, C. J., and CUDmuch as it states that the imprisonment was

cur. HISCOCK, J., not voting. unlawful, and orders the discharge as a matter of right, it seemingly decides and ad

Orders reversed, etc. judges that the prisoner was sane. The fact that he was sane is essential to its validity and correctness. The provisions of the or

(219 N. Y. 170) der, however, declare in substance and in

MARTIN V. CAMP et al. their operation and effect that he was not (Court of Appeals of New York. Oct. 3, 1916.) sane, and was insane. The provision that, 1. ATTORNEY AND CLIENT 76(1)-RIGHT TO in case he willfully or without reason vio DISCHARGE ATTORNEY. lated either of the directions of the order, A client may, at any time, with or without “the judge making this order, or any other reason, discharge his attorney. Supreme Court Justice of the Fourth Ju- and Client, Cent. Dig. & 120–124, 126; Dec.

[Ed. Note.-For other cases, see Attorney dicial District, may, in his discretion, va- Dig. 76(1).] cate this order and recommit him forthwith 2. ATTORNEY AND CLIENT Cw134(1) COMto the St. Lawrence State Hospital for the PENSATION-CONTRACT FOR SERVICES. Insane, with or without any further hear Upon discharge of attorney by his client, ing,” wholly lacks justification or authority the client is liable to pay the attorney only for

the reasonable value of his services rendered in case he was sane. His consent did not by him up to the time of the discharge, and the supply any authority or justification. It is client is not liable for damages for breach of obvious, beyond the need of discussion, that the contract because of such discharge, where

the attorney, in entering into a contract of emthe court could not, with or without his con- ployment with the client, has not changed his sent, order that he, as a sane person, be com- position or incurred expense, or where his emmitted for any reason to an institution, state ployment is not under a general retainer for

à fixed period in relation to the matters that or private, for the insane. Of a like though less forceful import is may arise during the period of the contract.

[Ed. Note.-For other cases, see Attorney and the statement in the order that the prohibi- Client, Cent. Dig. $$ 301, 302; Dec. Dig. Cm tion to the prisoner of going into the state 134(1).] of Massachusetts will, as appears to the 3. LIMITATION OF ACTIONS 50(3)—ACCRUsatisfaction of the court from the testimony,

AL or RIGHT-CONTINUING CONTRACTS--AT

TORNEY'S SERVICES. “be a sufficient restraining influence upon

The statute of limitations does not begin to said Fred W. Savage, and that he will ob- run against an attorney's claim for services unserve and comply with such provisions." | der 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.

rived from the consideration of analogous 50(3).]

contracts under the English common law. 4. LIMITATION OF ACTIONS Cm 50(3)-ACCRU

In the early case of Adams v. Stevens, 26 AL OF RIGHT--IMPLIED CONTRACT-ATTORNEY's SERVICES_UPON DISCHARGE.

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. and that they are not of right entitled to de 30(3).]

mand and receive a fair compensation for their

services; especially where there is an agreeAppeal from Supreme Court, Appellate ment to pay them a fixed compensation, or such Division, Second Department.

a reasonable remuneration for their services as Action by James G. Martin against Hugh those services shall be deemed to be worth.” N. Camp, Jr., as executor, and another. Substantially the view which Chancellor From a judgment of the Appellate Division Walworth expressed is now embodied in (161 App. Div. 610, 146 N. Y. Supp. 1041), af- statute form in section 474 of the Judiciary firming a judgment of the Special Term for Law. Cons. Laws, c. 30. That section proplaintiff, the defendant named appeals. Re vides that: versed.

"The compensation of an attorney or counsellor George Edwin Joseph, of New York City for his services is governed by agreement, ex

press or implied, which is not rostrained by (Henry C. Quinby, of New York City, of law." counsel), for appellant. Barclay E. V. Mc

Notwithstanding the fact that the employCarty, of New York City, for respondent.

ment of an attorney by a client is governed

by the contract which the parties 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

effect, establish that while so far as the atcircumstances. While the precise question torney is concerned the contract is entire has not been determined by this court, the and the attorney cannot recover unless he nature and character of the contract of em completely performs, the client with or withployment of an attorney by a client has been out cause may terminate the contract at any clearly defined. It is evident that the ques- time. The substance of the rule declared in tion now presented for decision must be de- these cases was expressed by Judge Hiscock termined in accord with the legal principles in Matter of Dunn, supra. In that case it which define the nature and character of

was said: such a contract. The contract under which

"It is well established in the case of the an attorney is employed by a client has client that he may at any time for any reason peculiar and distinctive features which dif- I 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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