#### Otis Anderson, Respondent, *against*Henry McAleenan, Appellant.

(Decided February 3d, 1890.)

The (lelivery of an article to a person, with authority to exhibit it to and sell it to another, does not authorize the person to whom it is so delivered to pledge it.

Declarations made by an attorney, while acting for plaintiff as counsel in a proceeding before a magistrate to revoke the license of defendant as a pawnbroker, for irregular practice connected with a certain pledge, are not admissible as admissions of fact to bind the client in an action against the pawnbroker for a conversion of the property pledged.

In an action to recover property alleged to have been pledged to defendant by a third person without authority, evidence of the conversation between plaintiff and such person at the time of the delivery of the article to the latter is admissible to prove the nature and extent of the latter’s authority.

The court, in charging the jury, may read to it an opinion in a reported case on a similar state of facts, as the law of the case, notwithstanding such reading discloses the decision in the other case, if the court leaves it to the jury to pass upon the facts.

Appeal from a judgment of this court entered upon the verdict of a jury and from an order denying a motion for a new trial.

The action was brought for the conversion of a diamond ring which plaintiff, a dealer in diamonds, delivered to one Katen, as he alleged, to show to some lady customers of Katen’s who wished to buy a diamond ring of that kind. Katen pledged the ring to defendant, a pawnbroker, who refused to deliver it to plaintiff on his demand. Subsequently a complaint by plaintiff and others was made to the mayor of the city against defendant as a licensed pawnbroker to revoke his license, and a hearing was had before the mayor. . The complaining parties were represented by Mr. Lynn as counsel, who stated the nature of the grievances, including *445the facts in relation to Katen’s pledge of the ring in question.

At the trial the jury found a verdict for plaintiff. A motion, by defendant for a new trial was denied, and judgment for plaintiff was entered on the verdict. From the judgment and the order denying his motion for a new trial, defendant appealed.

*David Leventritt,*for appellant.

The statements made by Mr. Lynn before the mayor were as to the nature of the charge against the pawnbroker, and were admissible to bind his client *(Ahern*v. *Goodspeed,*72 N. Y. 115, 116; *Cook*v. *Barr,*44 N. Y. 156). The silence of the plaintiff while his attorney was stating his case gave the latter the authority of truth *(Kelley*v. *People,*55 N. Y. 571). Declarations made in the presence of the plaintiff, by one assuming to represent him, are competent evidence against him (1 Phillips Evid., Cow. and Hill’s Notes, 437 ; *Nickel*v. *People,*36 N. Y. 116). If the admission is made in casual conversation the evidence may be weakened, but if deliberate made, as it was here, it is entitled to great weight (Cowen’s Treat. § 1401, citing 22 Wis. 675 ; 9 Iowa 391).

The court erred in reading to the jury the opinion in the case of *Heilbron*v. *McAleenan,*with the result arrived at in that case *(Reich*v. *Mayor,*12 Daly 75).

Assuming that the plaintiff gave the property to Katen to sell, he had power to dispose of the property by sale or pledge *(Smith*v. *Clews,*105 N. Y. 284; *Fitzgerald*v. *Fuller,*19 Hun 180; *Crocker*v. *Crocker,*31 N. Y. 507; *Waite*v. *Green,*36 N. Y. 556 ; *Padden*v. *Taylor,*44 N. Y. 371; *McNeil*v. *Tenth Nat. Bank,*46 N. Y. 325 ; *Moore*v. *Metropolitan Bank,*55 N. Y. 41; *Barnard*v. *Campbell,*58 N. Y. 73; *Conner*v. *Cunningham,*77 N. Y. 391; *Parker*v. Baxter, 86 N. Y. 586). The defendants as pledgees were *"bona fide*purchasers” within the meaning of that term (Abbott’s Law Dict. Factors’ Act, 2 Rev. Stat. 6th ed. p. 1168 § 3). The power of a factor to dispose of property carries with it the right to pledge *(Pegram*v. *Carson,*10 Bosw. 517, 518; *Cartwright*v. *446*Wilmerding,*24 N. Y. 532; *Howland*v. *Woodruff,*60 N. Y. 83; *Hayman*v. *Fluker,*13 C. B. N. S. 519; 32 L. J. C. P. 132; *Baines*v. *Swainson,*4 B. & S. N. S. 519 ; 32 L. J. Q. B. 281). *A bona fide*purchaser from a fraudulent vendee will be protected *(Ball*v. *Shell,*21 Wend. 222 ; *Mowery*v. *Walsh,*8 Cow. 238; *Lewis*v. *Palmer,*Hill & Denio Supp. 98 ; *Paddon*v. *Taylor,*44 N. Y. 371; *Keyser*v. *Harbeck,*3 Duer 341; *Fassett*v. *Smith,*23 N. Y. 252; *Ross*v. *People,*5 Hill 294 ; *Parker*v. *Patrick,*5 T. R. 175; *Davis*v. *Morrison,*Lofft 185). Private instructions to an agent do not charge innocent third persons *(Lefler*v. *Field,*50 Barb. 407; Story Agency § 73; *Hill*v. *Miller,*76 N. Y. 32; Ewell’s Evans Agency, 529; *Palmer*v. *Jarmain,*2 Mees. & W. 282 ; *Laverty*v. *Snethen,*68 N. Y. 526).

The question of larceny is not in the. case. In the *Heil bron Case,*the persons who pawned the goods were convicted of larceny and sent to state prison. A party who obtained goods by false “ pretenses ” could always give good title to a *bona fide*purchaser *(Mowry*v. *Walsh,*8 Cowen 238; *Ross*v. *People,*5 Hill 294; *Fassett*v. *Smith,*23 N. Y. 252; *Zink*v. *People,*77 N. Y. 114; *Parker*v. *Patrick,*5 T. R. 175; *Davis*v. *Morrison,*Lofft 185). The statute (Penal Code) changing false pretenses to larceny has not changed this common law rule *(Benedict*v. *Williams,*15 N. Y. St. Rep’r 677; *Fassett*v. *Smith,*23 N. Y. 252).

*James Flynn,*for respondent.

Mr. Lynn’s declarations before the mayor were made for other parties as well as plaintiff, and plaintiff was not bound to arise and dispute them. Such declarations, although made in the presence and hearing of parties, are not held to be admissions of the parties in other proceedings *(Sheridan*v. *Smith,*2 Hill 538, 541, 542; *Wilkins*v. *Stidger,*22 Cal. 231; *Adee*v. *Howe,*15 Hun 20 ; 78 N. Y. 469 ; *Milliner*v. *Lucas,*3 Hun 496; *Vandervoort*v. *Gould,*36 N. Y. 644).

The authority given to Katen to sell to a particular person did not authorize him to pledge the ring *(Heilbron*v. *McAleenan,*16 N. Y. St. Rep’r 957; *Citron*v. *Adams,*5 N. Y. Supp. 669).

*447Larremore, Ch. J.

The jury were correctly charged that if plaintiff delivered the diamond ring referred to in the complaint to Alexander Katen, with authority to exhibit it to a particular person and to sell it to such person, if the latter wished it, said Katen was not thereby given a power of disposition sufficiently broad to enable him to pledge said ring.

The jury were further instructed that if Katen was given general power of sale and disposition of the ring, his pledging of it was within the scope of his legal authority, and that defendant would be entitled to hold the property as security for the sum actually advanced. The learned judge in his charge followed the case of *Heilbronn*v. *McAleenan*in the General Term of the Supreme Court of this department 1 N. Y. Supp. 875 ; 16 N. Y. St. Rep’r 957), and we concur in the exposition of the law therein given by presiding Justice Van Brunt.

Nor did the trial judge err in instructing the jury to disregard the statements made by Mr". Lynn upon the hearing before the mayor, in the proceeding against defendant for alleged violation of his pawnbroker’s license. Such statements, as the trial judge intimated, might with propriety have been excluded when offered in evidence. Mr. Lynn is a mem her of the bar, and appeared upon the liearing before Mayor Hewitt as counsel. He was retained by Mr. Herbert, and not by plaintiff, although plaintiff admits that he “ supposed” Lynn represented him (plaintiff) as well as Herbert. Plaintiff further avers that he did not authorize Mr. Lynn to make the statements upon which defendant relies, and that he did not hear Mr. Lynn make them. This testimony would tend to negative any express authority on the part of Mr. Lynn to make declarations binding upon plaintiff. But, outside of this consideration, the judge’s ruling was correct, on the broad ground that Mr. Lynn was acting as counsel at the time when he made the statements, and that declarations made in such capacity cannot be brought forward as admissions of fact to bind his client. The rule that declarations of an agent, made within the scope of his authority, will bind the principal, has no application here. A man’s counsel is in one sense his *448agent, but the special work which the counsel has to perform is to make the most favorable showing .possible upon facts, as well as law. He is an advocate with unlimited powers of discretion. He is not like an ordinary agent whose express duties and methods of procedure are laid out before hand, so that the principal may justly be held liable for what he originates, though its execution be entrusted to another. An advocate’s statements are always supposed to be adapted to the exigencies of the case on trial, and colored by what he conceives his client’s best interest demands, at that particular time, and under those peculiar circumstances. Acts and statements that would seem disingenuous, or even culpably-misleading, n other relations of life, are pardoned in the professional advocate, because of his necessary attitude toward his client -and toward the enemy. There is every reason, therefore, why the oral statements of counsel upon a judicial inquiry of any sort, no matter what their purport may be, should not be taken as solemn admissions of fact which the client may not afterward gainsay. It has been held that an admission in a pleading is competent evidence against the party in whose behalf it is interposed in an action. But that is the case of a formal written instrument, and, moreover, it must be shown “ by the signature of a party or otherwise, that the facts were inserted with his knowledge or under his direction and with his sanction.” *(Cook*v. *Barr*, 44 N. Y. 156).

The learned judge did not err in admitting the conversations between plaintiff and Katen at the time of the delivery, and as to the return of the ring. The very point to be proved was the extent and nature of Katen’s power of disposal of the ring. This necessarily proceeded from some communication from plaintiff to Katen, and,.as there was nothing in writing between them, the best evidence was a verbatim account of the conversations they had had.

Another point has been urged by appellant, which I feel called upon to notice, because it seems to involve a misconception of a previous decision of this court. The trial judge in his charge read to the jury a portion of the opinion of Judge

*449Van Brunt in the case of *Heilbron*v. *McAlleenan,*above referred to, telling them that the law governing the case at bar was therein laid down. Said opinion contained a statement of facts and an application of legal principles to them, but also divulged the circumstance, incidentally and as part of the argument, that in that case the jury had found for plaintiff. Under the decision in *Reich*v. *Mayor,*(12 Daly 75), appellant claims that error was committed necessitating a reversal. The *Reich Case*was simply an extension of the doctrine that the jury must receive instructions on the law from the court, and not from counsel.. Many cases will be found in the books holding that counsel may not, in summing up, read law books to the jury. *Reich*v. *Mayor*merely decided that if a counsel, after being directed to close a book from which he was reading, goes on and states from memory the substance of what the book contains, and informs the jury of the decision in the reported case, he will have broken the rule just as effectually as if he had read from the printed book. This is the scope of that decision as I understand it, and in my opinion it has no application to the case at bar. It is the duty of the judge to guide the jury, and whether he states the law from his own knowledge and memory, or reads it from decisions, treatises, or his own manuscript, is immaterial. It is within the province of the court to say that a certain case is in its facts very like the case at bar, provided, of course, that it be left to the jury to pass upon the facts. Whether a decision is an authority for a case on trial or not, depends on its facts ; and the court, before it holds the case to be an authority, must consequently always decide that the facts of the two cases are substantially analagous. His belief that the two cases resemble one another on the facts is therefore necessarily implied, every time a judge uses a decision as a precedent in charging a jury, and I can see no possible objection to express ing such belief in so many words. Nor do I think the mere fact that a judicial opinion, in the course of its reasoning to show that the verdict appealed from should be sustained, happens to disclose what such verdict was, precludes the reading of such opinion to a jury in another case, as part of the *450judge’s charge. The jury must of course always be given, to understand, as they were in the case at bar, that they are to find an independent verdict on the evidence before them, deducing from the opinion read merely the legal principles which are to govern.

The judgment and order appealed from should be affirmed, with costs.

Bookstaver and Bischoff, JJ., concurred.

Judgment affirmed, with costs.