Lamkin v. Rosenthal

39 N.Y.S. 483 | N.Y. App. Div. | 1896

Parker, P. J.:

It is claimed that the order from which this appeal is taken can be sustained on two grounds :

First. That the stipulation executed on December 24, 1895, by David Rosenthal for this defendant, authorizes it.

But there cannot be found in such stipulation any agreement whatever on the part of either party to discontinue this action, or that an order may be entered discontinuing it. The plaintiffs do not agree to discontinue. They simply agree to take their goods and leave the rest alone. There is an agreement to discontinue the actions against Greene and McDougall, but with those actions this order does not interfere, and they are not now before us. This order cannot, therefore, be sustained on the ground that the defendant has ever consented that such an one be entered.

Second. It is claimed that such stipulation is an agreement whereby the parties settled the cause of action involved in this suit, and that, therefore, the plaintiffs should be allowed to discontinue the same, 'and to have an order entered to that effect.

To this the defendant replies that his son David had no authority to make such a contract for him. His affidavit shows that David was sent to close a purchase of the goods, with money to pay for them, and with instructions to ship them to New York city, and that beyond that he had no authority whatever to act for his father. It appears that after David had received the goods from the vendor, and was about to ship them to New York, these plaintiffs claimed the goods in question, took possession of them by force of a replevin writ issued in this action, and after they liad so obtained possession, David, the agent, by executing the stipulation above referred to, agreed that they might keep all they claimed if they would not take any more. In our opinion David had no authority to make any such arrangement. TIis instructions were to pay for and receive, not to give away, tlie goods. The defendant had an undoubted right to contest in court and before a jury, the’claim which the plaintiffs make to the goods which he had purchased, and David, his agent, had no authority to contract that right away. There is no evidence in the record before us showing that he had any such authority. Iiis own admissions to that effect, even if he made any, are evidently not to be taken as against this defendant, and no such power can be inferred from the duties which the defendant states had been imposed upon him. The stipulation, therefore, is without effect, as an agreement, against this defendant. Whatever may be the merits of their respective claims to the ownership of these goods it is clear that the plaintiffs should not be allowed to use the form of an action and the process of this court to take the goods away from defendant’s possession, and then, by discontinuing the action, deprive him of the means of establishing his title, and of the judgment of the court restoring them to him. The defendant has the right, and must be allowed, to take the verdict of a jury upon the question of his ownership of the goods. For that reason the order appealed from must be reversed, with costs.

All concurred.

Order reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.