
    Artemas Ward, Doing Business Under the Trade Name of Ward & Grow, Appellant, v. Jewish Leader Publishing Company, Inc., Respondent.
    (Supreme Court, Appellate Term, First Department,
    June, 1916.)
    Pleading — in Municipal Court of city of New York — contracts — corporations — what may he included in answer.
    In an action brought in the Municipal Court of the city of New York on a contract signed by the secretary of a corporation as such, defendant, under an answer which simply denies the making of the contract alleged in the complaint, is entitled to show that his secretary was not authorized to sign the contract because of defendant's failure to comply with section 92 of the Municipal Court Code which provides that “ A signature to a written instrument which is pleaded shall be taken "as admitted unless the party sought to be charged thereby files with the clerk, within eight days after joinder of issue, a specific denial of the genuineness of the signature and a demand that it be proved. Such denial "and demand by a defendant may be included in his answer. ’ ’
    Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, ninth district, dismissing the complaint.
    Everett, Clark & Benedict (Greorge W. Martin, of counsel), for appellant.
    Henry Kuntz (Abraham P. Wilkes, of counsel), for respondent.
   Guy, J.

Plaintiff appeals from a judgment entered by direction of the' court dismissing the complaint-after a trial before the court without a jury.

The action is for breach of a written contract, which the complaint alleges was entered into between plaintiff and defendant whereby plaintiff agreed to render certain services in handling, distributing and collecting defendant’s publication Jewish Leader to newsstands of the Manhattan Elevated Railway and Subway Systems of the Interborough Rapid Transit Company, to maintain said publication on sale each month during the period stated in the agreement, and to pay defendant for all copies sold by plaintiff at the trade price of sixty cents per 100; and defendant agreed to pay thirty dollars each month in advance for such service, with the understanding that if the total sales of each month exceeded 7,500 copies the charge of thirty dollars for distributing service should- be cancelled.

The written contract, which was introduced in evidence, bears the signature: “ Jewish Leader Publg. Co., A. Hillman, Sec’y.”

The answer denies the making of the contract alleged in the complaint.

The two questions involved on this appeal are: First, whether said Hillman, who signed the contract for the defendant and who was also a director of the company, was duly authorized to make said contract, or, if not so authorized, whether the contract was subsequently ratified by defendant; second,' whether, by reason of non-compliance with section 92 of the Municipal Court Code, -defendant can question the authenticity of the signature attached to said contract.

Defendant introduced in evidence a by-law of the defendant company which provides that no debts shall be contracted or liability incurred or contracts made and entered into by any officer of the company unless authorized and directed by a resolution of the board of directors entered in the minutes of said board, and that all contracts involving a payment or a liability greater than twenty-five dollars shall be reduced to writing and sighed by the president and secretary and be under the seal of the company; and evidence was introduced showing no such resolution was ever adopted authorizing the making of the contract.

There is evidence which might be deemed sufficient to establish general authority in Hillman, the secretary and director, to fix the terms of all contracts for the distribution of defendant’s publications, so as to bring the making of the contract with plaintiff within the apparent scope of his authority, notwithstanding the provisions of defendant’s by-laws; but there is no proof of knowledge by plaintiff of such general authority in Hillman and plaintiff’s reliance thereon. Nor is there sufficient proof of ratification, except as shown by the pleadings.

It is also contended by plaintiff-appellant, and we think properly, that the question of the authenticity of defendant’s signature to the contract could not be raised by defendant on the trial herein because of defendant’s failure to comply with section 92 of the Municipal Court Code, which provides that “A signature to a written instrument which is pleaded shall be taken as admitted unless the party sought to be charged thereby files with the clerk, within eight days after joinder of issue, a specific denial of the genuineness of the signature and a demand that it be proved. Such denial and demand by a defendant may be included in his answer.” While the answer herein denies the making of the contract alleged in the complaint, it does not demand that the signature to the contract, which is pleaded and annexed to the complaint herein, be proved, as required by section 92. The party sought to be charged with said contract is the defendant herein, not Hillman, and the contract alleged purports to bear the signature of the defendant.

Defendant having failed to comply with the provisions of section 92, its signature to said alleged contract must, for the purpose of the trial of this action, be deemed the genuine and authentic signature of the defendant.

Plaintiff proved the making of a valid contract, binding upon the defendant, and a subsequent breach thereof, with damage to plaintiff. This established a good cause of action, and the dismissal of the complaint was error.

The judgment must, therefore, be reversed and a new trial ordered, with thirty dollars costs to appellant to abide the event.

Bijur, J., concurring in result.

Judgment reversed and new trial ordered, with thirty dollars costs to appellant to abide event.  