the partition of certain real estate belonging to the decedent, in which action the administratrix was made a defendant. This action was tried in January, 1916, and the judgment therein, upon the verdict of a jury, affirmatively established that John O'Brien, Richard O'Brien, and Edward Reardon were first cousins of the deceased and of the same degree of relationship as the administratrix, and, with her, included within the term next of kin.

It further appears that assets of the estate to the value of approximately $61,000 at the time they came into the hands of the administratrix, consisted of non-trust securities, which were either held by the administratrix at the time of the filing of her account on June 13, 1918, or had been disposed of by her during the months of April and May, 1918, at an alleged apparent loss of approximately $9,000.

The account filed June 13, 1918, states that 136 shares of the common stock of the Municipal Gas Company of Albany has not been sold because the market for same is inactive and some of the next of kin are willing to accept a distribution thereof in kind, at a valuation to be fixed by the surrogate. In what manner this willingness on the part of the next of kin to accept a portion of this stock was expressed is not disclosed; one of the next of kin is an incompetent whose property is in the hands of a committee; the whereabouts of another is unknown, and his share, if decreed to him, may be required to be deposited in court. The statement in the account would seem to be without foundation, except as it may evidence a disposition and willingness on the part of the administratrix to accept her share, in whole or in part, in this security.

Objections were filed to the account by two of the next of kin and these objections came on to be heard on July 15, 1918. The objections. and the testimony offered related to the losses sustained by the estate through the alleged negligence of the administratrix in holding non-trust securities for so long a period and selling them at an apparent loss, to the right of the administratrix to invest the assets in non-trust securities, and to items of disbursements shown in the account for administration expenses.

During the progress of this hearing, and at the time when the Municipal Gas stock was the only security remaining undisposed of, and when the administratrix had filed her account for the purpose of a judicial settlement and distribution, her attorney made the stipulation now sought to be stricken from the record. At that time Municipal Gas Company stock was being offered at 148, and was sought at 136. The stipulation charged it to the administratrix as if sold on that day at 142. At the time of the disaffirmance of the stipulation on the part of the administratrix, and of her application to have it stricken from the record, the stock had depreciated in value, and is alleged to have had a market value at that time of between 110 and 113.

The administratrix in her moving papers states that her attorney never told her of this stipulation of July 15th, and that the only time. she had any intimation that she might be called upon to take some stock as part of her share was on July 20, 1918, when her attorney told her that she might be obliged to take some stock, to which it is

alleged she replied that she did not want stock, but wanted cash. Her attorney, however, at the hearing held on December 20, 1918, stated that

"In all proceedings attorney for the administratrix had acquainted her with the facts as they transpired, and after the hearing of July 15th, told her the stipulation that was made in open court, and that it would be necessary for her to take at that value the stock which was set aside, or to dispose of it and be responsible for it at a cash value."

There were further hearings in the proceeding, subsequent to July 15th, in which this attorney appeared for the administratrix, but at no time, nor in any manner, was disapproval of the terms of the stipulation by the administratrix, or her unwillingness to be charged with this stock at the figure stipulated, made known until December 20th. It was the duty of the administratrix to sell the personal property of the deceased for the payment of debts and for making distribution, and it is inconceivable how the administratrix could receive her share in cash, as it is alleged she told her attorney on July 20th she desired to do, in the absence of an agreement on the part of the other next of kin to accept this stock in lieu of cash, unless the stock was sold and the assets converted for a cash distribution.

[2] The facts and circumstances of the case justify the conclusion that the stipulation of July 15th was not unreasonable, and that, if binding upon the administratrix, the discretion of the court should not be exercised to disturb it, and particularly so when the administratrix permitted the other next of kin, upon its terms, to become inactive upon this branch of the case during a period of further depreciation in value of this security.

[3] It has long been settled that the authority of an attorney extends to the management of the case in all the exigencies which arise during its progress, and that, in the absence of fraud, his authority cannot be questioned by his client because of the want of specific authority to do the act done or consented to. Clinton v. N. Y. C. & H. R. R. R. Co., 147 App. Div. 470, 131 N. Y. Supp. 881.

[4] The stipulation of July 15th clearly comes within the above rule. The account of the administratrix was filed for the purpose of judicial settlement and decree for distribution. The gas stock was not converted into cash, but was reported in the account as being in the hands of the administratrix. The distribution of the estate necessarily involved that a disposition of this stock should be provided for, either (1) by its distribution among the next of kin; (2) by its sale and distribution of proceeds; or (3) by being charged to the administratrix at a specified price. There was no agreement among the parties, and there is doubt as to whether any was legally possible as to two of the next of kin, by which distribution in kind could be made available; the administratrix had not sold the stock at the time of filing her account, and has failed to do so since that time.

From the very nature of the case, the value of this stock was an issue in the accounting proceeding, and had to be disposed of before its final determination. The administratrix chose her representative in the selection of her attorney. He has appeared by her authority and

was intrusted with the management of her cause. He agreed in open court that she should be charged with this stock at a price which represented its value at that time, and this it would seem he had ample authority to do under his retainer. His contract, in the absence of fraud, is her contract. Good faith will not permit a party to repudiate an agreement made in an accounting proceeding by her attorney with the other parties and the court as to the value of undisposed securities five months after it was made, and when the securities have depreciated in value, upon the sole ground that the party did not consent to such agreement and that the same was made without her specific authority.

The stipulation of July 15th is therefore binding upon the administratrix and the application to strike the same from the record is denied.

The application for relief from the stipulation of October 1, 1918, presents, however, a different situation, although made upon the same ground. This stipulation was not filed until December 20th, and was immediately disaffirmed by the administratrix in a supplemental account filed on that day and through another attorney appearing for her, who has since been substituted as her attorney. By its terms the objections to the allowance of commissions to the administratrix were sustained, all other objections were withdrawn, and certain sums specified in the maximum as allowances to the parties for services of counsel, including the services for the attorney for the administratrix. Among the objections withdrawn by this stipulation was one to the allowance of two several payments, aggregating $5,000, paid to the attorney for the administratrix for services to the estate. This objection, upon the necessity for and value of the services rendered, was the subject of testimony at the hearing on July 15th and at the subsequent hearing on October 1st, which sought to establish that the payment of $5,000 to the attorney included compensation for services to the administratrix personally, in the partition suit and for services of a clerical and administrative nature, which should properly have been performed by the administratrix personally, and for which the commissions allowed by law are intended to compensate. The effect of the stipulation was to surrender the right of the administratrix to commissions and to remove all question as to the legality of the $5,000 payments to the attorney.

I am reluctant to exercise a discretion and refuse relief to a party where such refusal rests upon the integrity of a stipulation made without the party's consent, by her attorney, by which the attorney himself may possibly derive a benefit, and which she promptly disaffirmed. [5] The application for relief from the stipulation of October 1, 1918, except so far as it may be affected by the stipulation of July 15th, is therefore granted.

WRIGHT-ROSA ENGINEERING CO., Inc., v. I. M. LUDINGTON SONS, Inc. (Supreme Court, Trial Term, Erie County. February 14, 1919.)

A plaintiff must recover on the facts stated in his petition, or not at all; and where the complaint proceeds on a clear theory, recovery cannot be had on another theory, because the complaint contains averments inconsistent with the first.

2. CONTRACTS 210 CONSTRUCTION-TIME.

A contract under which plaintiff was to erect the steel for certain bridges, though providing that work should begin immediately on delivery of the steel by the carrier, and that the time should be on or about a named date, did not make time a controlling factor, and defendant was not liable, because the steel was not delivered until after the time mentioned.

Under a contract under which plaintiff was to erect for defendant steel. for bridges over a state canal, a contract with the state, giving rights to it of inspection and of preparing the drawings, being made a part of the first contract by reference, held, that defendant was not liable for delay caused by the state's failure to promptly furnish drawings.

Action by the Wright-Rosa Engineering Company, Incorporated, against I. M. Ludington Sons, Incorporated. Judgment for defendant, dismissing the complaint on the merits.

Strebel, Corey, Tubbs & Beals, of Buffalo, for plaintiff.

Lewis, McKay, McMillan & Bown, of Rochester, for defendant.

WOODWARD, J. The complaint alleges the incorporation of both the parties, and that on or about the 10th day of January, 1914, they entered into a contract in writing, whereby the plaintiff agreed to "furnish all necessary labor, tools, appliances, etc., to unload, haul, erect, rivet, and paint structural steel in the Macedon, Edgett, and Peeks bridges on contract No. 108 of the so-called Barge Canal, state of New York, for said defendant, for the sum of $20 per ton net;" that "it was agreed that the defendant should deliver the steel for said bridges at the nearest railroad station on the following dates: On or about February 15, 1914, for the Macedon bridge; March 15, 1914, for the Peeks bridge; and April 15, 1914, for the Edgett street bridge;" and that "it was agreed that all of said work should be done by the plaintiff under said contract by May 1, 1914." It is then alleged that the plaintiff duly performed all the conditions of the contract, except that it did not complete the work within the time limited, and that the defendant failed to deliver the steel at the dates mentioned, and did not deliver it until May 1st to May 27th, and that the plaintiffs were delayed in the work for a period of 12 months, and that by reason. of such delays the plaintiffs suffered damages, by reason of increased costs and expenses, of $1,137.20, which was duly demanded, and payment refused.

A second cause of action is alleged because of alleged defects in the fabrication of the steel; the theory being that, because of defects in

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 174 N.Y.S.-18

fabrication, the steel did not go together as rapidly and with the use of the ordinary appliances, and that thereby the cost, in excess of the plaintiffs' estimate, reached the sum of $729.16. There was no evidence that the plaintiffs' estimated costs were correct as to the Macedon bridge (where these alleged defects appeared), except that this estimate was made in connection with the Edgett and Peeks bridges, and that these cost within $30 or $40 of the estimates made, and the inference is sought to be drawn that the Macedon bridge would have come within the estimates, except for the defects in fabrication. There was no evidence to support this claim, except as to some small matters admitted by the defendants, and which have been provided for by an allowance made by the company which furnished the materials to the defendants, and which are substantially disposed of by the agreement, by which the plaintiffs concede the amount of an offset equal to this item, and which it is not necessary to go into in the determination of this case.

[1] Coming back to the first cause of action, the defendants deny "that the defendants agreed to deliver the steel for said bridges at any specified dates," and the plaintiffs, in support of the allegations of the complaint, put in evidence the written contract. "It is fundamental that in civil actions," say the court in Walrath v. Hanover Fire Ins. Co., 216 N. Y. 220, 225, 110 N. E. 426, 427, "the plaintiff must recover upon the facts stated in his complaint, or not at all. In case a complaint proceeds on a definite, clear, and certain theory, it will not support or permit of another theory because it contains isolated or subsidiary statements consistent therewith. A party must recover, not only according to his proofs, but according to his pleadings."

[2] The plaintiffs allege that "it was agreed that the defendant should deliver the steel for said bridges at the nearest railroad station on the following dates" (setting them out), and the contract put in evidence clearly does not establish these facts. The language of the contract is that

"The party of the second part [the plaintiff] hereby agrees to furnish all necessary labor, tools. appliances, etc., to unload, haul, erect, rivet, and paint structural steel in the Macedon, Edgett, and Peeks bridges on contract No. 108 of the so-called Barge Canal in the state of New York for the party of the first part for the sum of $20 per net ton. The hauling and erecting to commence immediately upon the delivery of the steel by the railroad the time of which will be on or about February 15, 1914, for the Macedon bridge; March 15, 1914, for Peeks Bridge; and April 15, 1914, for the Edgett street bridge."

It is "the party of the second part" who "hereby agrees" to furnish the tools, etc., and that the "hauling and erecting" is to "commence immediately upon the delivery of the steel by the railroad," and the dates are likewise agreed by the party of the second part to be "on or about" the days mentioned. Obviously the parties, in entering into this contract, did not make the time of the delivery the material or controlling factor; it called upon the plaintiffs to commence immediately upon the hauling and erecting of the steel upon its delivery, not by the defendants, but by the railroad. Then, and then only, were the plaintiffs bound to move; this they agreed to do, and the dates