34 Misc. 535 | N.Y. App. Term. | 1901
This action was brought to recover the reasonable value of plumbing work done in the residence of defendant during his absence in Europe. Judgment was given for the defendant on the ground that the caretaker who ordered it acted without authority.
On this branch of the case we concur with the decision of the justice. The testimony shows that there was no authority in the caretaker, Mrs. Underwood, as a matter of law, and that the plaintiff did not, in fact, perform the work relying on any apparent authority vested in her by virtue of the position she occupied or the extent to which she was concededly permitted to represent her master’s interests. The facts, as to which there is no substantial dispute, are as follows: During the defendant’s absence on
Ho attempt was made on the argument to show any agency in Mr. Wilson. It appears that he was an officer in the same com■pany in which the defendant was vice-president, but whom he had no instructions or authority to represent in any of the latter’s private affairs.
So far as the caretaker is concerned, I should feel disposed to hold as a matter of law that she had no authority to order the extensive repairs in question, especially in view of the plaintiff’s testimony that the leak could have been stopped by turning off the water. A caretaker is defined as one employed “ in a building or on an estate during the absence of the owner,.to look after goods or property of any kind” (Cent. Dict. 823), or as “one employed to watch over or keep in order property as a house in the absence of the family.” Standard Dict. This, in the case of a city house left in charge of a person under the circumstances here disclosed, does not, in the absence of special authority, ex
If the liability of the defendant rested solely on the acts of the caretaker, we could not disturb the judgment, but a more serious consideration for reversal is presented on the issue of ratification. There is no dispute but that the repairs were made in a workmanlike manner and that they inured to the benefit of the defendant’s property. There could, of course, be no ratification by an implied acceptance through silence, inasmuch as the repairs became part of the freehold, thus precluding restitution. It appears, however, that on July the 10th, 1900, the plaintiff sent a bill to the defendant addressed to his house. The date of its receipt by the defendant or that of his return home is not revealed. On October fifth the defendant wrote to the plaintiff implyiiig due receipt of the bill, stating that upon his return he had obtained the opinion of another plumber as to the value of the work, who considered forty dollars an outside price for it. The letter concludes, “ I am, therefore, willing to pay this sum, provided you will give me a receipt in full for the work, but do not intend to go beyond this figure. Under the circumstances I cannot but expect that you will modify your estimates to suit the case.” It
With the actual value of the repairs we have nothing to do. That will be matter for determination on the retrial.
Judgment reversed and new trial ordered, with costs to the appellant to abide the event.
Bisohoff, P. J., and Olarke, J., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.