
    Guy Lamkin and Alfred S. Foster, Respondents, v. Harris Rosenthal, Appellant.
    
      A stipulation construed us to the discontinuance of an action — effect of con agent exceeding his authority.
    
    Upon an appeal from an order dismissing this action, it appeared, among other things, that the defendant sent his son, David Rosenthal, to close a purchase of certain goods, giving him authority only to pay for and ship the goods to New York city. David Rosenthal received the goods from the vendor, and was about to ship them to New York when they were taken by tlie plaintiffs under ' a writ of replevin issued in the action now sought to be discontinued, and thereafter David Rosenthal, claiming to act as agent for the defendant, executed a stipulation in writing by which it was agreed that the plaintiffs should keep such part of the goods as they were able to identify and make no further claim to the balance, and that each of the parties should ' release the other from all liability on account of such levy.
    
      Held, that as neither party had in the stipulation agreed to discontinue the present action, the order appealed from was not authorized thereby;
    That David Rosenthal, having no authority to make the arrangement in question, could not deprive the defendant, his principal, of liis right to contest the plaintiffs’ claim in court, and the stipulation was not effective as an agreement to settle a cause of action.
    Appeal by tlie defendant, Harris Rosenthal, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Rensselaer on the 5th day of March, 1896, granting the plaintiffs’ motion to dismiss the action.
    
      The action was brought in replevin to obtain the possession of certain merchandise.
    The following is the stipulation referred to in the opinion :
    “ Copy Stipulation Read on Rich ale of Plaintiff.
    “Whereas, Harris Rosenthal of New York city was in possession of stock of goods in ‘ New Shoe Store ’ under a claim that said goods had been purchased on the morning of Dec. 24th, 1895, and whereas Lamkin & Poster of Poston, claiming to own the boots, shoes and rubbers in said store, replevied the said stock and the same now is in possession of the sheriff of Rensselaer county; and
    “Whereas, an action has been commenced by said Rosenthal against Lorenzo McDougall and Geo. E. Greene, one of the plaintiffs’ attorneys; and
    “'Whereas, it lias been agreed by said Lamkin & Poster that it will surrender all of said goods, boots, simes and rubbers that their representative, A. P. Crawford, cannot identify, and that they will make no further claim to the balance of said merchandise,
    “Now in consideration of the foregoing and the sum of one dollar paid by each of said parties to the other, the receipt thereof is hereby acknowledged, each releases the other of and from all claims on account of said levy, and on account of said actions against said McDougall and Greene, and the latter are hereby released by said Rosenthal, and said actions are to be discontinued without costs to either party, except that each of the parties hereto is to pay one-half of the sheriff’s fees. Said Lamkin & Poster are immediately to select their goods from said stock and to the balance thereof they are to make no claim; and said Rosenthal hereby releases said sheriff of and from all liability whatever on account of said levy or taking possession of said goods.
    “ Hoosiok Palls, N. Y., December Mth, 1895.
    “ LAMKIN & POSTER,
    “ By A. P. Crawford.
    “ HARRIS ROSENTHAL,
    • “ By David Rosenthal.
    “Hoosiok Falls, N. Y., Dec. 24, 1895.
    “ Received from L. McDougall and Geo. E. Greene the sum of one dollar in full for all claims of every kind and nature to date, and in full for all claim in actions brought this day against them and each of them.
    “HARRIS ROSENTHAL,
    “ Bv David Rosenthal.”
    
      Samuel Greenbaum, for the appellant.
    
      Geo. E. & H. J. Greene, for the respondents.
   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.  