| N.Y. App. Div. | Jan 15, 1897
Apart from the legal questions presented by the respondent—and they are serious—we think the order appealed from should be affirmed upon the-facts. We do not agree with the learned counsel for the appellants that the affidavits, h -re show, as he claims, beyond a shadow of a doubt, that the defendant’s president, Dr. Frantz, in the purchase of the property in question, occupied towards the plaintiffs a. fiduciary relation within the' equitable doctrine invoked on their behalf. Upon the contrary, we think that thó affidavits are by no means conclusive as to this crucial fact. We cannot say that, although Dr. Frantz, tried to obtain the gold plant for the plaintiffs, the latter intrusted him with any such, authority as imposed upon him a duty to-continue his efforts upon their behalf, and. to notify them when he ceased to make those efforts. Frantz’s affidavit and the surrounding circumstances certainly tend to show that the plaintiffs consented merely that he should communicate to the administratrix such offers as they were willing to make, and that he should report to them such offers-as the administratrix was willing to make. These respective offers proving entirely barren of result, there was apparently no reason why Frantz should continue to act for the-plaintiffs, or should notify them that he was. no longer exerting himself on their behalf. They knew as well as he the narrow limits'.