20 Misc. 343 | N.Y. App. Term. | 1897
The principal question discussed on this appeal is'the right of the plaintiff to maintain an action against the defendant as temporary receiver of the Harlem Casino Company; it being contended that there is no proof that the receiver was authorized by the court to manage the business of the company, or; to carry on its restaurant where the loss of the plaintiff’s overcoat occurred.
A temporary receiver, as such, has no authority to continue the business of the concern, and, unless he is authorized to do so by the court, the estate cannot be charged with liability incurred by him in the business. Meyer v. Lexow, 1 App. Div. 116; Sayles v. Jourdan, 2 N. Y. Supp. 827; 19 N. Y. St. Repr. 349. And, if this defendant was not authorized to manage the Casino or restaurant, he should have made the fact clearly ap-' pear or have- taken the specific objection that ¡no- such authority . had been shown by the plaintiff. . Where parties in the District Courts are represented by competent counsel, it is to be assumed that the case is tried upon the actual facts, as known to them; and a judgment will not be reversed, -upon an objection taken for the first time on appeal as to. a matter of proof which might have been obviated On the trial, if then made.
On the question of liability for the act of the waiter in taking charge of the plaintiff’s coat and failing to properly cafe for if,
Judgment affirmed, with costs.
Mo Ad am and Bischoff, JJ., concur.
Judgment affirmed, with costs.