Pfaltz & Bauer, Inc. v. Wiener

181 A.D. 793 | N.Y. App. Div. | 1918

Shearn, J.:

The plaintiff’s claim arises out of an alleged sale to it of Spanish licorice root by the defendant, a resident of London. The transaction was conducted entirely with one Warschauer, and the validity of the attachment sought to be vacated depends upon proof of Warschauer’s agency. There is no competent proof whatever that Warschauer was an agent of the defendant in the transaction. He pretended to be an agent and the situation was such as to lead the plaintiff to believe that he was defendant’s agent, but neither Warschauer’s declarations nor the plaintiff’s belief constitute proof of agency. Even if there were proof of agency, the plaintiff was in a position where, as shown by the affidavit of its president, it could have elected tp hold Warschauer as a principal. The plaintiff claimed that the oral contract on which it bases its rights was confirmed by a letter that it addressed to Warschauer, yet for some reason this letter is not incorporated in the affidavit in support of the attachment. The omission to exhibit this letter naturally leads to the inference that it would show that plaintiff was dealing with Warschauer as a principal.. While the letter would not afford any proof of Warschauer’s agency, it might afford very persuasive evidence that plaintiff was not dealing with him as an agent. In attachment cases, where the contract sued upon depends upon proof of agency, the court has recently condemned the practice of omitting from the affidavits available evidence which might aid the court in determining whether the ultimate facts stated in the pleadings have been or can be substantiated. (Makepeace v. Dilltown Smokeless Coal Co., 179 App. Div. 662.)

The order appealed from should be reversed, with ten dollars costs and disbursements, and the attachment vacated.

Clarke, P. J., Laughlin, Dowling and Page, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and attachment vacated.