129 A.D.2d 869 | N.Y. App. Div. | 1987
Appeals (1) from an order of the Supreme Court at Special Term (Duskas, J.), entered December 18, 1985 in Schenectady County, which granted defendant’s motion for summary judgment dismissing the complaint, and (2) from an order of said court (Dier, J.), entered February 24, 1986 in Schenectady County, which denied plaintiff’s motion for renewal.
Plaintiffs entered into a contract to store some of their personal property with Redman Van & Storage Company (Redman) in Utah while they were living in California. Subsequently, Redman auctioned off the property because of plaintiffs’ alleged failure to make storage payments. Plaintiffs, who had moved to Schenectady County in New York, then commenced this conversion action against defendant. Plaintiffs alleged that defendant was a principal of Redman and thus liable for its agent’s acts. After issue was joined, defendant made a motion for summary judgment asserting that, as a
We address first the issue of whether plaintiffs alleged sufficient facts in their papers submitted in opposition to defendant’s motion for summary judgment to raise a triable issue as to whether Redman acted as defendant’s agent in storing plaintiffs’ property. Defendant submitted a copy of the contract between it and Redman which establishes that the relationship between these entities was limited to interstate shipments. Redman thus lacked actual authority to act on behalf of defendant with regard to storage activities. However, a jury question as to the existence of apparent authority can be found when the principal either acts in a manner or acquiesces in acts by its agents which leads a third party to believe that these acts were within the scope of the agent’s authority (see, Hallock v State of New York, 64 NY2d 224; Ford v Unity Hosp., 32 NY2d 464, 473; Restatement [Second] of Agency §§ 27, 43 [1958]).
We consider next whether plaintiffs are bound by the arbi
Orders modified, on the law, without costs, by reversing so much thereof as dismissed that part of the complaint which alleged the existence of an agency relationship; matter remitted to Supreme Court for a trial on the issue of agency; and, as so modified, affirmed. Mahoney, P. J., Main, Mikoll, Levine and Harvey, JJ., concur.
Although it appears that the law of Utah should control this case, since the parties have failed to make a showing of the law of that jurisdiction this court can properly presume it is the same as the common law of New York (see, Selles v Smith, 4 NY2d 412, 414; Cherwien v Geiter, 272 NY 165, 168).