Robeson v. Central Railroad of New Jersey

FOLLETT, J.

The defendant concedes that it employed the plaintiff to conduct legal proceedings to recover possession of the property leased by it to the Philadelphia & Reading Railroad Company, the defaulting lessee. The value of these services the defendant ought to pay. The defendant answers that $4,000, which the plaintiff admits he received, is an adequate compensation for the services rendered in recovering possession of the property. The learned and experienced referee found that these services were worth $10,000, which left, after deducting the payments, $6,000 due and unpaid. The valuation of the plaintiff’s services by the referee is certainly not excessive, in view of the services proved to have been rendered, the value of the subject-matter of the litigation (about $70,000,000), and the eminence and experience of the plaintiff. The defense of payment for these services was not sustained by the evidence, as the referee well found.

The defendant also asserts that the courts of! this state are without jurisdiction of the subject-matter of the action. The referee-found that the contract under which the services were rendered was- made in the state of New York, and that part of the services were rendered in this state, which brings the case within section 1780 of the Code of Civil Procedure. There is no merit in the contention that, because the price of the services to be rendered under the contract made in this state was not fixed by it, there was no contract, within the meaning of the section of the Code last mentioned. The complaint contains but one count or cause of action for the recovery of all the services rendered by the plaintiff. The defendant, without moving to have what it claims to be two separate causes of action separately stated, answered, and, among other defenses, averred “(6) that the alleged cause of action stated in the complaint herein did not accrue within six years before the commencement of this action.” The defendant, being a foreign corporation, cannot avail itself of the statute of limitations of this state. Olcott v. Railroad Co., 20 N. Y. 210; Rathbun v. Railway Co., 50 N. Y. 656; Boardman v. Railway Co., 84 N. Y. 157; Mallory v. Railroad Co., *42 N. Y. 354. The statute of limitations of the state of New Jersey is not referred to, or legally pleaded, in the answer. The statute, or the substance of it, should have been sét forth, or it should have been referred to by the date of its enactment, or by some reference to the Public Statutes of that state. In this answer there is no reference to the statute of limitations of the state of New Jersey, nor is there any allegation in it that there is a statute on that subject in that state. The answer was insufficient to raise this question. Van Santv. Pl. (Moak’s Ed.) 208; Boone, Code PI. § 29, and cases cited; Bliss, Code PI. §§ 184-304. The learned counsel for the defendant insists that, if the New Jersey statute was not well pleaded, the referee should have allowed the answer to have been amended. This would have introduced a new defense, which was beyond the power of the referee. Riley v. Corwin, 17 Hun, 597; Case v. Bridge Co. (Super. N. Y.) 11 N. Y. Supp. 724; Code Civ. Proc. § 1018, and cases cited. But, assuming that the New Jersey statute of limitations is well pleaded, we think the defendant failed to establish this defense. November 7, 1885, the defendant drew its check to the order of the plaintiff for $1,500, which the plaintiff received and receipted for on the 9th of the same month, and on the 2d of April, 1886, the defendant drew to the order of the plaintiff a check for $2,500, which was mailed to the defendant,at Washington. The date when this check was mailed by the defendant to the plaintiff does not appear, nor does it appear when the plaintiff received it, nor when it was paid. Both of these checks were, as is claimed by the defendant, paid on account of the proceedings taken to recover possession of the defendant's property. If the last check were received by the plaintiff subsequent to April 8, 1886, the action was brought within six years from the date of the last payment, and the statute of limitations had not applied, as a bar. The statute of limitations is an affirmative defense which must be proved by the pleader.

The proceedings to recover possession of the leased property from the Philadelphia & Reading Railroad Company were begun March 24, 1885, and the final order was entered April 6, 1886, when the defendant claims the plaintiff’s retainer in this matter terminated; but the evidence is that in May and June following the plaintiff had consultations with the directors and officers of the defendant with reference to the matter. The plaintiff appeared before the tax commissioners December 15, 1884, and argued the appeal in May, 1886, before the court of errors. The referee found that the plaintiff rendered services under his general retainer between December 1, 1884, and June 1, 1886, and there is no finding, or any

request to find, that services were not rendered within six years prior to the commencement" of the action, except the referee was requested to find that the services in the proceedings to recover possession of the property ended April 6, 1886. The statute of limitations did not begin to run on the demands until the plaintiff’s services were terminated. Bathgate v. Haskin, 59 N. Y. 533; Mygatt v. Wilcox, 45 N. Y. 306. As before stated, the defendant made no attempt to separate the claim for the services rendered for recovering possession of the property, and to interpose the plea of any statute of limitations as a bar to plaintiff’s recovery for such services.

The defendant also insists that the plaintiff cannot maintain this action because, under the laws of Yew Jersey, an action cannot be maintained for the recovery of services rendered by an attorney or counselor at law. The answer to this is, as stated by the learned referee, there was no evidence given on the trial as to what the law of Yew Jersey was upon that subject, and that it must be presumed to be the same as the law of the state of Yew York. There is no claim that any statute of limitations is a bar to the claim for services rendered in the tax proceedings. The defenses interposed to this demand are that the courts of this state are without jurisdiction; and that, under the laws of Yew Jersey, counsel cannot recover for professional services, and that the plaintiff was never employed by the defendant to conduct these proceedings. The first two defenses have been sufficiently discussed, and little need be said on the merits. The plaintiff testified that he was so employed, and it was undisputed that he was actively engaged as counsel in those proceedings for more than two years, and it is plain that he earned the sum allowed by the referee. The only question is, which of the several railroad corporations jointly interested in this question employed the plaintiff? This issue was found by the referee in favor of the plaintiff, and upon evidence which, we think, is entirely sufficient to sustain his conclusion. The judgment should be affirmed, with costs. All concur.