Carney v. Penn Realty Co., 159 N.Y.S. 273

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159 N.Y.S. 273 | N.Y. App. Div. | 1916

Putnam, J.:

The learned referee failed to find that the conversation which plaintiff swears he had with John C. Martin, since deceased, did not take place. In his decision he questioned the authority of John 0. Martin, who was the corporate treasurer, to make such a contract. When the plaintiff rested and a motion to dismiss was made on this ground, the referee denied it. But in his report he stated as the first and crucial question “ whether there was ever any agreement on the part of the corporation, or any authority to the defendant to employ him to do the acts which he claims to have done. There is no *88evidence that the treasurer was authorized to make such contract.” Again he required preponderance of proof that this contract “not only was made by the treasurer, but was with the authority of the corporation.” But this joint affidavit, now produced, shows the two brothers Martin to be the sole corporate owners of this corporation. As to each other, they occupied substantially the relation of partners. (Goss & Co. v. Goss, No. 2, 147 App. Div. 698, 702.) Of course, such corporate owners and officers are not limited in control by a board of directors which must necessarily be dummies. (First. Nat. Bank v. G. V. B. Min. Co., 89 Fed. Rep. 439; Cook Corp. [7th ed.] §§ 663, 664.)

In view of the referee’s denial of defendant’s motion to dismiss, plaintiff was excusable in not before obtaining this record evidence of the corporate ownership.

I, therefore, advise that the order be reversed, and the motion for a new trial granted, costs to abide the event. But, as the issues have been referred by stipulation, such new trial must be by referee rather than with a jury. (Butterly v. Deering, 158 App. Div. 181.) The retrial of the issues will be referred to Honorable William D. Dickey, as official referee.

Jenks, P. J., Stapleton, Mills and Rich, JJ., concurred.

Order reversed and motion for new trial granted, costs to abide the event, and retrial referred to the Hon. William D. Dickey, as official referee.