Murphy v. Ball ( 1862 )

By the Court, Emott, J.

The plaintiff was in the employ of the defendants, as night watchman, at a stipulated compensation. In December, 1857, he commenced, and-for two years thereafter continued, to watch also the premises of the Importers and Traders’ Bank, which at that time adjoined the store of the defendants. The additional services which he thus performed might have been rendered under his original contract with the defendants. In that event he would not have been entitled to any additional compensation from any one, and any money or pay which the defendants obtained for his services would have belonged to them, because these services would have been entirely and exclusively their property. His additional services, again, might have been rendered under a new employment by the defendants, by which he was to receive additional compensation from them for watching the banking house, as a farther service rendered to them or at their request. If this were so, it would not sustain the present action, which is not brought for money earned by or due to the plaintiff from the defendants for such additional services, but for money received by the defendants from the bank to the use and benefit of the plaintiff. It may , be added, that the evidence expressly negatives the supposition that the defendants agreed to pay the plaintiff any new or farther compensation for his additional services in watching the adjoining bank. A third supposition in regard to the plaintiff’s employment and service, would be that he was expressly employed by the Importers and Traders’ Bank to watch their premises in addition to the premises of the defendants, and that for this the bank was to pay him a compensation farther than what he was already receiving as the watchman of the defendants. This last supposition of facts as to the employment and services of the plaintiff must be assumed or established as a preliminary to such an action as the present, and probably there is evidence upon which the jury might have come to such a conclusion. But this alone will not sustain the present action. An employment of the plaintiff by the bank, and an agreement to pay him a stated or a suitable compensation, would of course enable him to bring an action against the bank for such compensation. To such an action, provided the services were rendered, the bank could have no defense but payment. It may not be necessary to assert that this action cannot be maintained, unless the payment by the bank to the defendants operated as a payment to the plaintiff; but the mere facts that the bank was liable to pay the plaintiff for his services, and that they paid the defendants a sum of money for those services, would no more sustain the plaintiff in this action, than they would defend the bank in a suit against it by the plaintiff. The witness G-ood, who is in the employ of the defendants, testified that the defendants received $520 from the Importers and Traders’ Bank for the watching of their building, $260 in January, 1860, and $260 in January, 1861, being at the rate of $5 per week for two years. It is not claimed or pretended that the plaintiff authorized or requested the defendants to collect or receive this money for him. He did not even know that it had been paid, until long afterwards. Nor is there any evidence that the bank paid the money to the defendants for the benefit of the plaintiff, or intending thus to discharge an indebtedness to him. As little proof is there that the defendants understood that this money was paid to , them for the plaintiff, or accepted it as belonging to him. In truth, the case stands simply upon the allegation that the bank owed the plaintiff for certain services, and that it chose to pay a third person for these services of the plaintiff. Indeed, the payment was made to the defendants, as if they were entitled to control the services of the plaintiff, and as if they and not the plaintiff were entitled to compensation for them. The money was neither paid to them nor received by them to the plaintiff’s use, and its receipt under such circumstances, while it does not prejudice the plaintiff’s right of recovery against the hank, if he have any, did not make the money his, or entitle him to claim it from the defendants, or to maintain the present action against them.

[Orange General Term, September 8, 1862.

The judgment must he reversed, and a new trial ordered.

Emott, Brown, Scrugham and Lott, Justices.]