
    Joseph P. Carney, Appellant, v. Penn Realty Company, Respondent.
    Second Department,
    June 2, 1916.
    New trial — newly-discovered evidence — contract by persons having control of corporation —reference.
    Motion for a new trial of an action to recover for personal services claimed to have been rendered to a corporation based upon affidavits showing newly-discovered evidence that certain persons who are claimed to have employed plaintiff owned all of the stock of the corporation and controlled its action. Evidence examined, and held, that a new trial should be granted.
    As the issues in the former trial were referred by stipulation, the new trial must be before a referee rather than before a jury.
    
      Appeal by the plaintiff, Joseph P. Carney, from an order of the Supreme Court, made at the Richmond Special Term and entered in the office of the clerk of the county of Richmond on the 15th day of October, 1915, denying his motion for a new trial herein upon the ground of newly-discovered evidence.
    The action was to recover for personal services claimed to have been rendered in superintending the remodeling of a building, known as The Richmond, into a modern apartment house. The defense was a denial of the special employment claimed. It is also asserted that the services were volunteered in order to induce defendant to give to plaintiff a contract for gas fixtures, also the agency for letting these apartments. The issues were referred to a referee, who reported in favor of defendant, which this court affirmed (163 App. Div. 973). The motion for a new trial was based upon several affidavits of persons who deposed to plaintiff’s services, also to what were claimed as admissions by defendant, and upon an authenticated copy of a joint affidavit on file in the Richmond county clerk’s office, made by John 0. Martin and Edwin K. Martin, consenting to a mortgage by the Penn Realty Company, to the effect that each affiant had fifty shares and together held all the capital stock of defendant corporation. The court denied the motion without opinion, from which plaintiff appealed.
    
      Joseph P. Carney, appellant, in person.
    
      Bertram O. Eadie [Guy O. Walser with him on the brief], for the respondent.
   Putnam, J.:

The learned referee failed to find that the conversation which plaintiff swears he had with John C. Martin, since deceased, did not take place. In his decision he questioned the authority of John 0. Martin, who was the corporate treasurer, to make such a contract. When the plaintiff rested and a motion to dismiss was made on this ground, the referee denied it. But in his report he stated as the first and crucial question whether there was ever any agreement on the part of the corporation, or any authority to the defendant to employ him to do the acts which he claims to have done. There is no evidence that the treasurer was authorized to make such contract.” Again he required preponderance of proof that this contract “not only was made by the treasurer, but was with the authority of the corporation.” But this joint affidavit, now produced, shows the two brothers Martin to be the sole corporate owners of this corporation. As to each other, they occupied substantially the relation of partners. (Goss & Co. v. Goss, No. 2, 147 App. Div. 698, 702.) Of course, such corporate owners and officers are not limited in control by a board of directors which must necessarily be dummies. (First. Nat. Bank v. G. V. B. Min. Co., 89 Fed. Rep. 439; Cook Corp. [7th ed.] §§ 663, 664.)

In view of the referee’s denial of defendant’s motion to dismiss, plaintiff was excusable in not before obtaining this record evidence of the corporate ownership.

I, therefore, advise that the order be reversed, and the motion for a new trial granted, costs to abide the event. But, as the issues have been referred by stipulation, such new trial must be by referee rather than with a jury. (Butterly v. Deering, 158 App. Div. 181.) The retrial of the issues will be referred to Honorable William D. Dickey, as official referee.

Jenks, P. J., Stapleton, Mills and Rich, JJ., concurred.

Order reversed and motion for new trial granted, costs to abide the event, and retrial referred to the Hon. William D. Dickey, as official referee.  