Louis J. Altkrug and Jacob W. Kahn, Respondents, v. Rose Horowitz, Appellant

Louis J. Altkrug and Jacob W. Kahn, Respondents, v. Rose Horowitz, Appellant. Second Department, March 2, 1906. Attorney and client — proof insufficient to show retainer by wife when brought in as party defendant in suit against husband — evidence — objection to narration by witness. ... Action by attorneys for professional services. When attorneys have been employed by a husband to defend an ’action, and, on the wife being brought in as a party defendant, are told-by the husband in the wife’s presence “ to go ahead and defend her,” to which statement she made no reply, proof of such fact is insufficient to show a retainer by the wife, especially when the services rendered to the wife were incidental to the defense of the action against the husband. An objection to a narration by a witness is good; for counsel have a right to have testimony brought out by question and answer in order to. protect the client’s interest by objection rather than by motion to strike out. Appeal by the defendant, Rose Horowitz, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the plaintiffs, entered'in the office -of the clerk of said court on the 2d day of February, 1905. Mark D. Goodman, for the appellant. Jacob W. Kahn, for the respondents. [MAJORITY — Per Curiam :] Per Curiam : The action is for legal services. A suit was brought in the. . Supreme Court against the defendant’s husband. When it came to trial it was marked off the calendar for a defect of parties, and the plaintiff sent to Special Term to move to bring in the defendant, who thereupon-was brought in. . The case was finally settled without trial. One of the plain tiffs testifies tha.t he- had been retained in that suit by the husband at the outset, and that at or about the time the defendant was brought in the husband, in the presence of the defendant, told him. “to go ahead and defend her,” and that she did not join in the conversation, b.ut must have heard it. He testi-' fies that, he thereafter prepared an answer for her, and that he had one consultation. On the other hand, the defendant testifies that she gave the summons and complaint served upon her to her husband for his attention ; that she never was present át any conversation when her husband told the plaintiff to go ahead and defend her, or made any similar remark, and that she never subscribed any answer in that suit. Her husband corroborates her. It does not appear that any claim was ever made upon the defendant until just before this action was begun. We think that the proof fails .to establish liability on the part of the defendant. Subsequent to the time of the alleged retainer by effect of her silence, there is no testimony that estops her. There are no facts shown as to. any communication made to her, or as to any services rendered which should have caused her to suppose that she-was liable therefor. The plaintiffs must,: therefore, rest upon her alleged silence at the alleged interview.- Of course, agency may be implied from conduct and acquiescence on the part of the alleged principal. But the evidence is not sufficient, under the circumstances of this case, to. apply that principle. This was primarily an action against the husband; these plaintiffs were then his attorneys and had received his retainer, and even if the husband did tell one of them in the wife’s presence to go-ahead and defend it for his wife, it is more than doubtful whether her silence is sufficient to imply his agency to retain them as her attorneys so as to charge her with liability for services in that suit. Certainly in the face of the testimony of the defendant and of her husband to the contrary, the plaintiffs have not sustained the burden of proof.' There is every, indication that the services rendered to the defendant were such as would have been rendered to the husband as entirely incidental to the protection of his interests if he hád remained the sole defendant, save the preparation of the answer, which the defendant test-i-' fies without contradiction that she never subscribed. The fact that the husband is in bankruptcy may be some indication why this action was brought against his wife, for there is no-satisfactory evidence that the action against her. was not an afterthought. Some exceptions taken to rulings on the. evidence are open to criticism, but, in view of the new trial, it is not necessary to discuss them, as they are to be .criticised, not for radical error, but for unduly limiting the inquiries of the defendant. One, however, may be. noted. We think that when -counsel objects to narration by a witness he has the right to have the testimony elicited by question and answer, in order that he may protect his client by objection rather than by a motion to strike out. The judgment should be reversed and a new trial ordered, costs to abide the event. Hirsohberg, P. J., Woodward, Jerks, Rich and Miller, JJ., concurred. Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.