Livingston Middleditch Co. v. New York College of Dentistry

31 Misc. 259 | N.Y. App. Term. | 1900

O’Gobmah, J.

Plaintiff, a printer, sued the defendant for a balance of $538.67, due for services rendered and materials furnished at its request through one Frank F. Vanderveer, its attorney. The performance of the work, its value, and non-payment are not in dispute. A payment of $300 on account of the work had been made by defendant’s check to the order of its attorney who indorsed it over to the plaintiff. The only question litigated was whether the defendant or its attorney was liable for the balance due. The attorney urges that he, alone, is liable, but there was no distinct agreement that the plaintiff looked to him for payment. The work done by the plaintiff consisted of certain printed matter purporting to be an argument by defendant’s said attorney, in its behalf, in opposition to a threatened revocation of its charter. At the close of plaintiff’s case the complaint was dismissed. The manuscript furnished to the plaintiff by defendant’s attorney apprised it of the relations existing between the defendant and its attorney. An attorney is the same as any other agent, and as such is not liable personally when he keeps within the limits of his authority, and discloses the name of his principal. Bonynge v. Waterbury, 12 Hun, 534; Judson v. Gray, 11 N. Y. 408; Packard v. Stephani, 85 Hun, 199; Am. & Eng. Ency. of Law (2d ed.), 405. He is then presumed to be acting as agent and not as. principal. The plaintiff, therefore, was justified in treating the defendant as its debtor, and for the purpose of showing authority in defendant’s attorney to order the work in question, endeavored to prove certain admissions ■and declarations made to plaintiff’s employee during the progress of the work by one Weisse, an officer of the defendant. On defendant’s objection such evidence was excluded. This was error. The conversations between Weisse and the witness at the^ time in question constituted part of the res gestae of the transaction in suit, and were competent. Post Exp. Print. Co. v. Cousey, 32 N. Y. St. Repr. 748; Anderson v. Rome, W. & O. R. R., 54 N. Y. 340. It appeared that bills. for the work were sent by plaintiff to the defendant’s said attorney. Plaintiff attempted to explain why this course was followed, but on objection, this evidence was rejected. This was obvious error. The question to whom credit was given by the plaintiff was the vital one in the case, and while the sending of bills to the attorney direct justified inferences favorable to the defendant, it was the privilege of the plaintiff to rebut these inferences by explaining that through courtesy or from other motives it was the usual custom to send bills to the attorneys of the parties.

Without considering the other errors assigned the judgment appealed from must be reversed and a new trial ordered, with costa to the appellant to abide the event.

Beekmah, P. J., and Giegerich, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.