
    James Dorsey, Resp’t, v. Rosella E. Pike, App’lt.
    
      (Supreme Court, General Term, Fifth Department
    
    
      Filed June 19, 1890.)
    
    1. Principal and agent. — Wife liable for purchase bt her husband OF PROPERTY TO BE USED ON HER PREMISES.
    Defendant was owner of a stone quarry which was worked hy her husband, and there was some evidence tending to show that he was her agent. He purchased an engine and pump of plaintiff, and used it in the quarry to her knowledge. Held, that she was bound by his purchase.
    8. Evidence. — Memoranda.
    For the purpose of use in refreshing the recollection of a witness, it is I entirely immaterial whether the memoranda are originals, copies, orl whether made by himself or by a stranger. I
    Appeal by defendant from a judgment entered upon a verdictl in the Monroe county court, and from an order denying a newl trial. I
    
      John Desmond, for app’lt; Henry J. Sullivan, for resp’t. I
   Corlett, J.

This action was commenced in November, 1886,1 in the municipal court of the city of Rochester, for the purpose! of recovering- the purchase price of an engine, pump and boileil which the plaintiff claims had been sold to the defendant foil $250. The complaint was denied, and judgment rendered for thel defendant in that court The plaintiff appealed to the Monro* county court, where a trial was had resulting in a verdict for thel plaintiff. A motion for a new trial was denied. The defendanfl appealed to this court where a new trial was granted because ofl error in the charge. 50 Hun, 534 ; 20 N. Y. State Rep., 676. I was again tried in the county court in April, 1889, resulting in a verdict for the plaintiff. A motion for a new trial was denied; judgment was entered, and the defendant appealed to this court.

The defendant was the owner of a stone quarry in the county of Monroe, and on the 3d day of July, 1886, the plaintiff leased the engine and pump for $12 per week. James B. Pike transacted the business, and was the defendant’s husband. He took the property, and a while afterwards used the same in the defendant’s •quarry. The plaintiff claims, and the evidence tends to show, that on the 6th day of August, 1886, the plaintiff sold to the defendant, through her agent, the husband, the engine, pump and •■appurtenances for $250. The property was in the quarry at the time of the alleged sale. After that the defendant, through her husband, exercised dominion over the property and used it as ■owner in the quarry. There was some evidence given on the trial tending to support this contention. At the close of the plaintiff’s evidence, the defendant moved for á nonsuit upon the ground that the plaintiff had failed to establish a cause of action against the •defendant; also that the contract was void because not reduced to writing, and that no money was paid at the time of the purchase; •on the further ground that the property was never received, delivered or accepted; also, that the agency of the husband had not been established. The motion was denied, and the defendant’s •counsel excepted. At the close of the evidence the motion was renewed and denied, and the defendant excepted.

The trial judge charged the jury to the effect that the proof tending to establish the agency of the husband was mainly cir■cumstantial, and the learned judge calls attention to numerous facts and circumstances in support of this view. The question as to whether there was a sale was also fully considered and commented upon by the learned judge, and also the question as to whether possession was delivered and taken under the sale, leaving to the jury the questions as to whether the husband was agent for the wife in that matter, whether there was a bargain and sale, whether there was a delivery and acceptance under the sale, charging the jury that if either of those propositions were found in favor of the defendant the plaintiff must fail. No exceptions were taken to the charge, but numerous requests to charge on the part of the defendant were made, all of which seem to have been properly disposed of by the trial judge. The defendant was not examined as a witness in her own behalf, and in view of the fact that there were circumstances tending to establish her husband’s agency to make the purchase, her omission to testify on that subject was a circumstance which the jury were at liberty to consider in reading a conclusion upon that branch of the case. Clark v. N. Y.,

L. E. & W. R. R. Co., 40 Hun, 607; 2 N. Y. State Rep., 249. Where an agent has general authority, private instructions are ot available against those dealing with him. Hill v. Miller, 76 N. Y., 32.

It is a familiar rule that the knowledge of an agent within the cope of his authority is that of the principal. Van Schoick v. Ni agara Fire Ins. Co., 68 N. Y., 434; Sentell v. The Oswego County Farmers' Ins. Co., 16 Hun, 516.

There were circumstances tending to show the agency of the husband. The property was used in her quarry to her knowledge, and it being upon her separate property, must be presumed to be used for her benefit. Cutter v. Morris, 116 N. Y., 310; 26 N. Y. State Rep., 508.

It follows that the husband’s purchase of the property, he being-agent, bound her. There was some evidence tending to show an acceptance under the purchase. The jury found the facts in favor of the plaintiff.

Numerous objections were made and exceptions taken by the-learned counsel for the defendant during the progress of the trial on the subject of the admission and rejection of evidence One objection was to allowing George E. Warner to refresh his recollection by looking at memoranda. For that purpose it is entirely immaterial whether the entries the witness looked at to refresh his recollections are originals, copies, or whether made by himself or by a stranger. Marcly v. Shults, 29 N. Y., 346-351.

All the exceptions have been examined, but no errors are discovered to the prejudice of the defendant requiring a reversal.

The judgment must be affirmed.

Dwight, P. J., and Macomber, J., concur.

Judgment and order appealed from affirmed, with costs.  