221 A.D. 732 | N.Y. App. Div. | 1927
The main question involved in this appeal is one of fact, namely, whether the authority in an agent to employ attorneys to represent the defendant has been revoked. The plaintiff is seeking to prove a repudiation of said authority so that it may thus dispose of the notice of appearance and answer served on behalf of the defendant, thereby eliminating what purports to be a meritorious defense, and enter a judgment as upon a default. The plaintiff has succeeded at the Special Term and the defendant appeals.
The facts necessary to show the reason for the decision are, briefly, as follows: The plaintiff is a New York corporation which claims to have purchased from another New York corporation,, no longer in existence, certain claims existing against the defendant. The defendant is a. governmental or quasi-governmental corporation formed by delegates from the various local “ Zemstvos ” in Russia. There appears nothing in the record to contradict the allegation that these Russian “ Zemstvos ” correspond in general to the American county governments or councils. In 1915 Messrs. Poliakoff, Avinoff and Sakhnovsky came to the United States as an American Commission representing the said defendant. Prior to the year 1918 the defendant, acting chiefly through representatives in Russia, made certain contracts with Gaston, Williams & Wigmore, Inc., the defunct New York corporation, which was the assignor of the plaintiff. In February, 1918. said Gaston, Williams & Wigmore, Inc., brought a suit in the United States Distri.it Court for the Southern District of New York upon certain claims alleged to exist in favor of this corporation against the defendant. An attachment was issued in that suit against funds of the defendant which were on deposit with the National City Bank and of which said Poliakoff had control. As these transactions arose principally through representatives of the defendant in Russia and as the American Commission had knowledge only
In denying the right to appear for the defendant, it would seem as though this case heretofore has been treated as if the original authority was in issue, without giving proper weight to the important fact in the case, namely, that the authority of the American Commission including Poliakoff to represent the defendant prior to the alleged repudiation, is conceded. The former authority being conceded, the defendant is then helped by the well-known presumption that a state of facts once shown to exist continues; and this is doubly so because of the governmental character of the defendant since Poliakoff’s original authority was certified by the duly accredited Russian diplomatic agents. (On November 18, 1918, Boris Bakhmeteff, who was then the duly recognized Ambassador Extraordinary and Minister Plenipotentiary of Russia to the United States, duly certified that the said Poliakoff was the agent of the defendant. Also, on April 30, 1919, S. Ughet, duly recognized Charge d’Affaires ad Interim of Russia to the United States, made a certificate to the same effect.) As was said by Judge Rogers in Agency of Canadian Car & Foundry Co., Ltd., v. American Can Co. (258 Fed. 363): “ The question at issue being, on this phase of the case, whether the Russian government has effectually divested itself of all interest in the moneys now in the hands of the defendant, this court holds that the certificate of the personal representative of that government, duly accredited to and recognized by the government of the United States, certifying that the official who assumed to assign and release any such interest as his government might have was authorized to act in behalf of his government in making such assignment and release, is competent and conclusive evidence, which the court below properly held to be decisive.” (p. 369.)
When it, therefore, appeared that the American Commission and Poliakoff had the authority to represent the defendant, while it did not shift the burden from the defendant, yet it then became the duty of the plaintiff to go forward and show facts to offset this admitted authority, which continued until the contrary is shown. To sustain the plaintiff’s contention that the authority of Poliakoff was revoked, reliance is placed upon an affidavit of George A. Gaston, the plaintiff’s president and obviously an interested person, that while in England in December, 1924, in
Even if Makeeff be conceded to be the duly elected president of the defendant, said extract does not prove any revocation of authority, but merely relates to actions without specific directions. Indeed, the reference to acting without the necessary information creates an inference of authority to act but a lack of information to act to the best advantage. But the legality of the election of Makeeff to the presidency of the defendant is put in issue by the appellant, who claims that the convention which elected said Makeeff was without a quorum and that employees of the Main Committee participated without legal right. It moreover appears that subsequent to the alleged election of Makeeff in 1918 and alleged revocation of Poliakoff’s authority, the latter continued to act as the defendant’s agent, and as late as 1922 was recognized as such by the executive departments of the United States government.
Upon this record the court is of the opinion that sufficient has not been shown to establish a repudiation of the authority of Poliakoff to employ attorneys to appear on behalf of the defendant and defend this action. The order accordingly should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
■ Dowling,' P. J., Martin and O’Malley, JJ., concur; McAvoy, J., dissents.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.