
    James J. McCluskey, Respondent, v. Franklin J. Minck, Appellant.
    (City Court of New York, General Term,
    November, 1896.)
    Principal and agent — Testimony of agents, as to authority.
    On an issue as to the existence of an agency, it is,improper to allow the alleged agents to testify that they had authority to act as such, as this is merely a conclusion.
    
      , Appeal- from judgment .in favor of plaintiff, entered upon verdict.
    W. Tompkins, for appellant.
    A. Wilson, for respondent.
   Schuchman, J.

This is an appeal from a judgment entered on the verdict of a jury in favor of the plaintiff and against the defendant at trial term.

This, action is- brought to recover the sum of $165 for 500 fruit crates, alleged to have been sold to the defendant.-

The answer denies the sale of the goods.

. The evidence shows that the defendant on May 3, 1893, gave an order to a Mr. .Taylor, who was an employee of the plaintiff, to ship amongst, others 500 Crates to Lingo & Short at Dagsboro, Delaware, which order the plaintiff returned to the defendant, writing on the back of it, “Mr. Minck, Dear.Sir.— We will, not be able to accept this order.”

On May 4, 1893, said Taylor not knowing that the plaintiff had refused the order, shipped.fhe 500-crates to Messrs. Lingo..& Short, and the latter accepted and receipted for the same. They having been told by the -defendant that he would-ship them 500 crates:

The defendant after the plaintiff’s refusal to accept said order, ordered 500 crates to be shipped by a "New York firm to said.Lingo &-Short, so that Lingo & Short received twice 500 crates..

Lingo & Short testified that they used Y00 of these crates, to-wit, 500 and 200 of the ones shipped by said Taylor, and that 80.0 were still on their hands.

The .defendant, testifies that he never knew that any of the crates of 500 shipped.by Taylor came into his hands or possession.

The ease, as prepared on appeal, does not show that the defendant is. liable on a direct purchase, of the crates; - he had given no order for the same and the only one that he had given was refused by the plaintiff. He can, therefore, be only held liable on a ratification and acceptance of the delivery of the crates. He personally never ratified' or accepted any delivery of the goods, but it is plain that his agents, Lingo & Short, did for him.

Of course, the defendant would be liable for the acts of .his , agents within the scope of their authority or agency. Thus, it throws the burden of proof upon the plaintiff to satisfy the court that Lingo & Short were authorized by 'the defendant, as his agents, to ratify and accept the delivery of the crates.

The plaintiff attempted to prove that agency by the testimony-of said Lingo & Short taken on commission. The interrogatories submitted to these two witnesses, and their answers thereto are as follows:

To the sixth interrogatory the witnesses answered: “ We acted as his agents.”

To the eighth interrogatory they answered: “ These goods were shipped to us and received on Franklin J. Minck’s account, we being his agents at that time at Dagsboro.”

To the ninth interrogatory they answered:- “We had authority from Franklin J. Miuclt to receive and receipt for the goods, wares and merchandise above mentioned.”

To the twelfth interrogatory they answered: “ That Lingo & Short being partners had full authority to sign for the firm and receive the goods.”

All these interrogatories were objected to and exception taken by the defendant’s counsel.

These two witnesses, Lingo & Short, have been asked for and testified to their conclusions merely. Nowhere did they testify-to any fact or circumstance emanating from the defendant regarding their agency, and from which the jury could have concluded. whether the defendant had authorized them as their agents to ratify and accept a delivery of the 500 crates.

These two witnesses were allowed by their testimony to discharge the functions of the jury; this was improper.

There is no doubt in the mind of the court that these interroga-tories to those two witnesses, and their answers thereto, in regard to their, agency, had a controlling influence with the jury in ren-. dering their verdict. ...

The judgment should, therefore, be reversed and a new' trial granted, with costs to the appellant to abide the event of'the' action."

Judgment reversed, with costs, and a new trial granted.'

O’Dwyer and Conlax, JJ., concur.

Judgment reversed, .with costs, and new trial granted.  