
    Robert Fulton, Resp’t, v. Garret P. Lydecker et al., App’lts.
    
      (City Court of New York, General Term,
    
    
      Filed June 18, 1892.)
    
    Evidence—Proof of agency—Declarations of alleged agent.
    The fact of agency or the extent of authority cannot be proved by the declarations of the alleged agent.
    Appeal, from judgment entered on verdict for plaintiff and from order denying new trial.
    
      Joseph M. Williams, for resp’t; Wm. B. Ellison, for app’lts.
   Van Wyck, J.

This action is for the conversion of a ton of wrapping paper. The plaintiff had orally agreed to sell and deliver to Cook & Smith, at No. 25 Park Place, New York City, the paper for ninety dollars and had confided the paper to the care of the defendant’s expressmen, to make such delivery for him. This case was up before for review and sent back for a new trial, which was had, and the judgment appealed from was entered on the verdict for plaintiff returned at such new trial. The record now before us is substantially the same as was before us on the former appeal. If anything, the evidence is stronger for plaintiff and bears more heavily against defendants’ contentions than it did upon the former trial. Upon the first trial the plaintiff was non-suited, which however was reversed on the first appeal upon the ground that a disputed question of fact had been presented by the evidence, whether there had been a rightful delivery by the defendants, common carriers, of the paper to Cook & Smith, or a wrongful delivery.of the same to other persons. The opinion of the general term of this court, filed on the former appeal in this action, would seem to fully answer all of appellant’s contentions, on this appeal, except perhaps the one that it was error to strike out the testimony given as to the declarations,, of the two boys who came down the hatchway in their shirt sleeves, that they were employed by Cook & Smith. This motion to strike out was properly granted, for an agent’s declarations are not admissible to prove his authority, and the fact of agency or the extent of authority cannot be proved by the declarations of the alleged agent. The trial judge properly submitted the disputed questions of fact involved to the jury, and the verdict returned for plaintiff is not against the weight of evidence. Referring again to the general term opinion filed on the former appeal of this case on December 17, 1891, and reported in 17 N. Y. Supp., 451, and 41 St. Rep., 457, we conclude that the judgment and order appealed from and now before us must be affirmed, with costs.

Fitzsimons, J., concurs.  