PARKER v. DAY

Per Curiam.

This action was brought to recover payment for legal services rendered by the plaintiff to the defendant.

Adaline C. Hotchkiss died in Detroit, Michigan, in 1887, and letters testamentary were issued to the defendant as her executor. Subsequently, claims of creditors amounting to about the sum of $60,000 were presented against her estate, and the services for which compensation is now sought were rendered by the plaintiff in defending the estate against such claims. The trial court found in favor of the plaintiff and awarded judgment against the defendant for the sum of two thousand dollars. The General Term reversed the judgment and ordered a new trial, but neither in the order nor judgment stated that the reversal was based upon the facts. Section 1338 of the Code of Civil Procedure then in force provided that: "Upon an appeal to the Court of Appeals from a judgment, reversing a judgment entered upon a referee's report, or a decision of the court, upon a trial without a jury; or from an order granting a new trial, upon such a reversal; it must be presumed, that the judgment was not reversed, or the new trial granted, upon a question of fact, unless the contrary clearly appears, in the body of the judgment or order appealed from. In that case, the Court of Appeals must review the determination of the General Term of the court below, upon the questions of fact, as well as the questions of law." We are thus, by the express provisions of the Code, required to presume that the reversal was based upon the law and are precluded from a review of the facts.

Our examination of the record discloses no error of law. Our attention has been called to two exceptions taken to the admission of evidence; one was with reference to a conversation that took place between the plaintiff and the defendant at the time of the dissolution of the firm of Day Parker with regard to the plaintiff's services in the Hotchkiss matter, and the other was with reference to the introduction in evidence of a written notice of retainer of the plaintiff by one of the legatees under the will of Mrs. Hotchkiss, neither of which exceptions point to any error. It was also contended upon the argument that there was absolutely no evidence showing an employment of the plaintiff, and that under the provisions of the Code then in force it became a question of law. Upon this question the evidence is to the effect that the plaintiff and defendant talked over the subject of the claims presented against the estate of the decedent, and that after the presentation of the principal claim amounting to the sum of $50,000, the defendant received from Detroit a box containing several thousand personal papers of the decedent. Upon its reception he delivered the same to the plaintiff, requesting him to look up the evidence relating to the claims, and after that the matter was left generally to the plaintiff to look up the entire testimony in this state, Michigan and Kansas, and thereupon he performed the services for which he now seeks to recover. There can be no question but this request by the defendant would have constituted an employment under ordinary circumstances. It is claimed by him, however, first, that the request coming from him as executor, the employment was by him as such, and that he is not personally liable therefor, and, secondly, that the plaintiff and defendant were both attorneys at law and copartners in business as such, and that the services rendered by the plaintiff upon the request of the defendant was as a member of the firm. With reference to the first contention the rule is well settled that the contracts of executors for services to be rendered are their personal contracts and do not bind the estate. ( Austin v. Munro, 47 N.Y. 360, 366; Ferrin v. Myrick, 41 N.Y. 315; Reynolds v. Reynolds, 3 Wend. 244; Demott v. Field, 7 Cow. 58; Myer v. Cole, 12 Johns. 349.) This rule has not been changed by section 1814 of the Code of Civil Procedure. ( Thompson v. Whitmarsh, 100 N.Y. 35; Buckland v. Gallup, 105 N.Y. 453.) With reference to the second contention Perry on Trusts, at section 432, says: "The rule that trustees can make no profit out of the estate is carried so far in England that they can receive no compensation for their services. In the United States trustees are entitled to reasonable compensation. Both in England and the United States a trustee can receive no indirect profit from the estate by reason of his connection with it. * * * If trustees are factors or brokers, or commission agents or auctioneers, or bankers, or attorneys, or solicitors, they can make no charges against the trust estate for services rendered by them in their professional capacity to the estate of which they are trustees. They may employ the services of such agents, if necessary, and pay for them from the estate, but if they undertake to act in such capacity themselves for the estate, they can receive no compensation. This rule is so strict that, if the trustee has a partner and employs such partner, no charge can be made by the firm; but if the trustee is excluded from all participation in the compensation, the partner of the trustee may be paid like any other person for similar services. * * * In the United States a trustee has been refused compensation as solicitor for professional services rendered by himself for himself as trustee, on the ground that no man can make a contract with himself."

In Collier v. Munn ( 41 N.Y. 143) it was held that an executor, who is an attorney and counselor at law, cannot be allowed any fees whatever from the estate for professionally defending and conducting an action brought against the estate, although requested by his co-executor to appear in such action and undertake the defense, with the promise of compensation, and although the legatees and next of kin united in such request. (See, also, Morgan v. Hannas, 49 N.Y. 667; Binsse v. Paige, 1 Keyes, 87.)

There can be no doubt that an individual may employ his copartner to do work for him outside of and independent of the copartnership, and become personally liable therefor. The question is as to whether there was such an employment of the plaintiff in this case. In determining that question, the fact that the parties were copartners properly entered into the consideration of the trial court, but it was not conclusive. The General Term had the power to reverse such determination upon the facts, but it could not properly reverse on account of error of law.

The judgment and order of the General Term should be reversed and the judgment entered upon the decision of the trial court affirmed, with costs.

All concur.

Judgment accordingly.