145 N.Y.S. 972 | N.Y. App. Term. | 1914
Besolving all questions of fact most favorably to the plaintiff, as we must for the purposes of this appeal, it appears that the defendant employed the plaintiff as his agent for the purpose of assuming in his own name an indebtedness of the Buckley Bealty Construction Company, to a bank of which the defendant was president, the Buckley Company then being in a precarious financial condition and a doubtful recipient of the bank’s credit. Under this arrangement the bank loaned $80,000 to the plaintiff. The plaintiff then paid the Buckley Company’s indebtedness to the bank and received notes from the Buckley Company secured by mortgages including a
This action is brought by Herrman to recover from Leland the cost of defending the suit brought by Greenfield. It is well settled law that an agent is entitled to reimbursement from his principal for expenses or damages incurred by him as a necessary incident to the proper conduct of his agency including the” cost of defending an action or adjusting a claim. Zimmerman v. Weber, 135 App. Div. 428;
Assuming that the plaintiff did not properly acquire possession of the mixer before selling it to Greenfield and that Greenfield was entitled to recover back from him the purchase price of the machine, I am unable to agree with the court below that the plaintiff was negligent as a matter of law. The plaintiff was not a lawyer. In the matter of the sale to Greenfield it appears that he consulted fully with the defendant and with the defendant’s attorney and was in effect advised by the said attorney after the sale had been completed that he had done all that was legally necessary and that Greenfield’s claim was groundless. The plaintiff himself employed a competent attorney to attend to all the legal matters relating to his agency, and, if not previously authorized, the employment of the said attorney was subsequently ratified.and adopted by the defendant by the payment by him of a $2,000 fee for the services rendered. Under these circumstances I think the plaintiff did all that reasonable care and prudence exacted of an agent and he was not negligent in following the advice of the defendant’s attorney in matters of which he was not supposed personally to have any technical knowledge.
Furthermore, it appears that the defendant was in possession of the money paid by Greenfield and retained it with full knowledge of all the facts. He could not adopt the benefits of the transaction and repudiate the means whereby they were obtained.
The judgment appealed from should be reversed and a new trial granted, with costs to the appellant to abide the event.
Lehman and Blitjr, JJ., concur.
Judgment reversed and new, trial granted, with costs to appellant to abide event.