
    (70 Hun, 600;
    mem. report without opinion.)
    SAGE et al. v. BURTON.
    (Supreme Court, General Term, Third Department.
    July 8, 1893.)
    Powers oe Agents—Collections.
    An agent authorized to collect accounts has no power, in the absence of evidence to that effect, to receive a check for less than the amount due his principal, where there is no evidence of mistake in the account.
    Appeal from circuit court, Albany county.
    Action by Henry W. Sage, Dean Sage, and W. H. Sage against D. G. Burton on an account. Judgment dismissing the complaint. Plaintiffs appeal.
    Reversed.
    The plaintiff's are copartners under the firm name of H. W. Sage & Co. The plaintiff's have had business dealings with the defendant for a number of years. For upwards of 20 years prior to the year 1890, one Joseph B. Abbott was in the employ of plaintiffs. Abbott was authorized to sell and make collections for plaintiffs. On or about the 6tli or 7th of March, 1890, Abbott called on the defendant at his place of business, with a statement for the lumber sued for in this action. A deduction of $100 was allowed by Abbott and credited on the bill, leaving a balance of $234.11. Thereupon defendant made and delivered to Abbott his check on the People’s National Bank of Mount Vernon, N. Y., to the order of plaintiffs, in their firm name, for $234.11, and thereupon the statement was receipted and marked: “Settled. H. W. Sage & Co. A.” In due course of time the check came to the defendant’s bank indorsed “H. W. Sage & Co.,” “J. B. Abbott,” and was paid by the Ibank out of defendant’s account, and charged to him.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    Tracey & Cooper, (James Fenimore Cooper, of counsel,) for appellants.
    George H. Stevens, for respondent.
   PEE CURIAM.

The defendant failed to show any authority in Abbott to indorse the check. On the contrary, it appeared that he had no such power. Certainly, without any proof of error or mistake in plaintiffs’ account, which is admitted by the answer, he was not shown to have possessed any power, as agent of plaintiffs, to receive a check for $100 less than plaintiffs’ conceded account in payment thereof. The check with which defendant claims to have paid the account set out in the complaint was produced on the trial by defendant, with a forged indorsement, and hence was then in defendant’s possession, unpaid. We think defendant did not show payment of plaintiffs’ conceded account, and hence that it was error to nonsuit. The judgment should be reversed, and a new trial granted, costs to abide the event.  