24 Misc. 177 | N.Y. App. Term. | 1898
This is an action on two promissory notes. As the appeal is from the City Court, all questions involving the credibility of witnesses must be resolved in favor of the plaintiff, and such facts deemed to be established as, upon any reasonable, view of the evidence, the jury could have found in his interest. See Pratt v. Ins. Co., 130 N. Y. 212. The defendant gave to her husband, Peter Y. Husted, a power of attorney to manage her. property, which power of attorney conferred upon said agent, among other things, authority to make and indorse promissory notes in her name. The uncontradicted evidence shows that Peter Y. Husted was in business for himself, and had numerous transactions with the plaintiff on his own account; and that, being engaged in a mining operation with plaintiff, he made and delivered to the plaintiff two promissory notes, made in defendant’s name, payable to his own order and indorsed by him, aggregating $1,4001 The plaintiff’s version of the transaction, which must be accepted as correct, is this, viz.: “ Hr. Husted wanted some money, and I
The defendant made no motion to dismiss the complaint, at the close of the case, nor did she move for the direction of a verdict in her favor. Had she made such a motion, and taken an exception to an adverse ruling, a question of law would have been raised for our consideration. The well-settled rule, however, limits the review by the Appellate Term of appeals from the City Court to the exceptions taken and the-errors of law presented; and, in the absence of the motion and exception above indicated, we cannot consider the question of alleged error in submitting the case to the jury. See Machauer v. Fogel, 21 Misc. Rep. 637; Geitelsohn v. Bank, 20 id. 84.
There is, however, an exception to a ruling in respect to the exclusion of evidence, which demands discussion.
•An examination of the -power of attorney fails to disclose any indication of an intent on the part of defendant to bind her estate in matters pertaining solely to her agent’s personal affairs; and the power to make notes in her name would seem to have a reference only to the management of her own property, and to be incident solely to carrying on her own business affairs. The witness, Peter V. Husted, at the commencement of defendant’s case, is asked this question, viz.: “ Q. Did the defendant ever receive $1 consideration for those notes? ” This was objected to,, the objection was sustained, and an exception was taken by the defendant. It was here sought to introduce testimony tending to show that defendant had no interest in the transaction, and that it was a matter solely on the agent’s personal account.
In the case at bar,'the plaintiff appears to have accepted Peter Y. Husted’s statement that he had the power to make the notes in his wife’s name, without making any investigation or inquiries as to the extent of the agency. The uncontradicted testimony fairly warrants the conclusion that, if the transaction was a personal matter of the agent, and not of the principal, the plaintiff must have known that fact, or, at least, had sufficient notice to put him upon inquiry; and yet he took the notes without question, on the simple assertion of the agent that he had authority to make them. It is well settled that one who takes a negotiable note, purporting to be made by an agent, is bound to inquire as to the power of the agent. See Gould v. Sterling, 23 N. Y. 464; Claflin v. Bank, 25 id. 298. ■ Third parties cannot rely upon the agent’s mere assumption of an
It is very clear that it was perfectly proper to show that defendant had no interest in the transaction, and that the agent had no authority to make the notes in question for the purpose indicated, and that in. so doing he transcended the powers conferred by- his agency. The exclusion of -the question above set forth was, therefore, error.
Furthermore, defendant requested the court to charge-as follows, viz.: “A trustee or agent shall not act for his. own benefit in any. matter relating to his agency or trust.” The court declined so to charge, and defendant duly excepted, While the request is, perhaps, somewhat broad and indefinite, still, under the- circumstances disclosed by the evidence, it Would have been proper and applicable, and it was error to refuse the request. '
■We are of opinion that the judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.
Beekman, P. J., and Geigerich, J., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.