#### Otis Anderson, Resp’t, *v.*Henry McAleenan, App’lt.

*(New York Common Pleas, General Term,*

*Filed February 3, 1890.)*

1. Conversion—Authority to exhibit and sell goods to a certain person does not authorize pledge thereof.

In an action to recover the value of a ring pledged to defendant by one K., the court charged that if plaintiff delivered it to K. with authority to exhibit it to a particular person and sell it to such person, K. had no-power of disposition which would enable him to pledge it; but that if K. was given a general power of sale and disposition the pledge was within the scope of his authority and defendant could hold it as security for the moneys advanced. *Reid,*correct.

3. Same—Evidence.

Proof of the conversations between plaintiff and K. at the time of its delivery and as to the return of the ring is admissible to show the extent and nature of his power of disposal, there being nothing in writing between them.

3. Evidence—Declarations of counsel.

Oral statements of counsel in any judicial inquiry, no matter what their purport may be, cannot be taken as admissions binding upon his client and are not admissible as evidence against him.

4. Trial—Judge may read from decisions in his charge.

The judge, in charging the jury, may read the law from a similar casein the reports; and the fact that a judicial opinion, in the course- of its-reasoning, happens to disclose what the verdict in that case was, does not preclude the judge from so reading it, so long as the jury are given to understand that they are to deduce from such opinion merely the legal principles and to find an independent verdict on the evidence before them.

*{Reich*v. *Mary or, 12*Daly, 75, distinguished.)

Appeal from judgment in favor of plaintiff, entered upon verdict.

Action to recover the value of a diamond ring. Plaintiff was the owner of said ring, worth $850. One Katen requested him to let him take it for one day to exhibit to a couple of ladies, and on his express promise to return it the following day plaintiff' allowed him to take it Katen delivered the ring to defendant in exchange for other property which had previously been pledged.

After Katen’s death, and a year after this transaction, plaintiff found out where the ring was and demanded it, but defendant refused to let him have it.

The defense was that the ring was given to Katen to sell and he therefore had the right to pledge it.

*David*Leventritt, for app’lt; *James*Flynn, for resp’t.

Larremore, Oh. 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 gale 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 *407his charge followed the case of *Heilbron*v. McAleenan, 16 N. Y. State Rep., 957, in the general'term of the supreme court of this department, and we concur in the exposition of the law therein given by Presiding Justice Van Brunt.

Eor did the trial judge err in instructmg 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 member of the bar, and appeared upon the hearing 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. TMs 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 agent, 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 beforehand, 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 these peculiar circumstances. Acts and statements that would seem disingenuous, or even culpably misleading, M other relations of life, are pardoned in a 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 Ms direction, and with his sanction.” *Cook*v. Barr, 44 N. Y., 156.

The learned judge did not err m 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 ex*408tent 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 conversation that they 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 Yan Brunt in the case of *Heilbron*v. *McAleenan,*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. *The 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. *The 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 analogous. 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 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 judge’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., concur.