
    Ulster County Sav. Inst. v. Fourth Nat. Bank of New York.
    
      (Supreme Court, General Term, Third Department.
    
    December 11, 1889.)
    1. Principal and Agent—Proof of Relation.
    The treasurer of a savings bank sent certificates of stock to a correspondent of the bank, with instructions to have the stock sold, inclosing a power of attorney of the owner to transfer it. The letter was of the usual form used by the bank in its business transactions with the correspondent, and was signed by the treasurer as such. It appeared that the correspondent had previously sold stock for the bank. Held, that the correspondent could look to the bank as the principal.
    2. Same—Powers of Agent—Sale.
    The letter requested the correspondent to send “all this to your correspondent at New Orleans, and order the same sold at a price not less than $20 a share. ” Held, that there was authority for selling a part of the stock at the rate specified, there being no special directions to the contrary. Ingalls, J., dissenting.
    3. Same—Indemnity to Agent.
    Part of the stock was sold on the New Orleans Exchange. By a custom of the exchange, delivery of stock is made on the day after the sale. This could not be done, as the company refused to transfer the stock, on the ground that there was a contest in regard to it. The arbitration committee of the exchange awarded damages to the purchaser to the amount the stock had advanced in value, which was paid by the New Orleans correspondent, and repaid to him by the bank’s correspondent, without any notice to the bank. Held, that the bank was responsible for the amount so paid. Ingalls, J., dissenting.
    4. Removal of Causes—Appealable Orders.
    An order of the special term denying a motion for leave to file a supplemental answer, showing that defendant was entitled to and had removed the cause to the federal court, is not reviewable on appeal from the judgment, as it is not an order which necessarily affects the final judgment.
    5. Same—When Jurisdiction Attaches.
    In a proper case, where the proceedings for removal to the federal court are regular, the state court is ousted of j urisdiction, whether the order of removal is granted or not.
    6. Same—Federal Question—National Banks.
    An action for money against a national bank, whose corporate existence is admitted, is not a suit arising under the laws of the United States.
    Appeal from circuit court, Albany county.
    Henry J. Burlington, a resident of the city of Kingston, in this state, died on or about February 28, 1876, in New Orleans, while temporarily residing there. At his death he had there in his possession scrip for 194 shares of the Crescent City Railroad Company, a corporation of Louisiana. H. Joseph Budington, a son of deceased, on that day took possession at New Orleans of the personal property of deceased, including such scrip, and applied to the proper court in Louisiana for letters of administration. An inventory of the estate in Louisiana was taken and approved, which included these 194 shares. The statutes of Louisiana required the administrator to give Security, which H. Joseph Budington failed to do. Thereupon the court appointed Charles Lafitte administrator, and letters were issued to him, June 26,1876. H. Joseph Budington paid all the debts of the deceased owing in Louisiana, except a disputed claim of $200, and abandoned the application for letters of administration in that state. He continued to have the scrip of said stock in his possession till the time when he finally sold and transferred the same on the books of the company, without objection by any one, after the transactions hereinafter stated. On the 29th of May, 1876, he was appointed administrator by the surrogate of Ulster county. About December 5, 1877, said H. Joseph Budington took to plaintiff’s office and delivered said scrip of 194 shares, with a certificate of the issue of letters of administration to him, and a power of attorney to transfer, signed by him as administrator. Thereupon, by his direction, the treasurer of plaintiff, December 6, 1877, sent the scrip, the certificate, and the power of attorney to defendant, inclosed in a letter signed by the treasurer, requesting that defendant would send “all this to your correspondent in New Orleans, and order the same sold at a price not less than twenty dollars per share. ” On receiving the same the defendant immediately sent the papers to its correspondent in New Orleans, the Germania National Bank, with like instructions. The Germania Hational Bank, on receiving the same, placed the scrip in the hands of Reynes So Villere, brokers, with like instructions. On December 12,1877, the day of the receipt by the brokers, they sold on the Hew Orleans Exchange 144 shares of the stock to one Willoz, at $20 per share; that being the market value. Ho express agreement as to the time of delivery was made, but by custom stock was to be delivered and the price paid the day after the sale.- On December 23d, the transfer was attempted; but the Crescent City Railroad Company refused to transfer, on the ground that there was a contest between the administrator and the heirs. The Germania Hational Bank tried to obtain a transfer, but could not. Before the termination of the efforts to secure the transfer, the market value of the stock had risen $10 per share. The Germania Bank, in making the sale and attempting to carry it out, pursued the regular course of business, and was guilty of no negligence. On the failure to transfer, Willoz demanded damages, viz., $10 per share. Both Reynes So Villere and Willoz were members of the stock exchange. In accordance with its rules, the claim of Willoz was referred to the arbitration committee, which awarded him $10 per share, or $1,440. This sum Reynes So Villere paid him, and they demanded the same of the Germania Hational Bank. The bank paid the same, and charged the amount to defendant, and returned to defendant the scrip. Thereupon, December 21, 1877, the defendant returned the scrip to plaintiff, and sent to plaintiff, also, letters received from the Germania Bank relative to the matter. On the 26th defendant wrote plaintiff, forwarding other letters and a certificate of the award of the committee, and informing plaintiff that the defendant had charged it with the $1,440. This sum defendant credited to the Ger-mania Bank. It would seem, from a letter of defendant to plaintiff, that the sale of 144 shares instead of 194 shares was owing to a variance in defendant’s letter to the Germania, as to the number of shares in one of the scrip certificates; and it would seem from this, and from some testimony, that Reynes So Villere did not have actual possession of the scrip when they sold, such being often the custom in these cases.
    Argued before Learned, P. J., and Landon and Ingalls, JJ.
    
      
      Bristow, Peet & Opdyke, (David Wilcox, of counsel,) for appellant. A. T. Clearwater, for respondent.
    
      
      In general, respecting the authority of an agent, and his principal’s liability for his acts, see Howell v. Groff, (Neb.) 41 N. W. Rep. 142, and note; Jenkins v. Funk, 33 Fed. Rep. 915, and note.
    
   Learned, P. J.

This is an action to recover an alleged balance of account. The defense is a counter-claim, and the questions in the case arise on the counter-claim. After issue joined, the defendant applied to the special term, in September, 1880, for the removal of the cause to the circuit court of the United States, southern district of Hew York, on the ground that the suit and matters in dispute arose under the laws of the United States. The motion was denied. 59 How. Pr. 482. On appeal by defendant, the order of denial was affirmed by the general term, in February, 1881. 24 Hun, 140. In June, 1881, on an affidavit, the defendant asked leave to serve a supplemental answer, duly verified, setting forth the fact that defendant had presented said petition and the usual bond, and had on the 18th day of October, 1880, filed a copy of the record in the circuit court of the United States, southern district of Hew York, and averring that thereby this cause was removed to said court, and this supreme court was ousted of jurisdiction. The court, at special term, denied the motion. The cause afterwards came on to be tried before the special term in September, 1887, and a decision was rendered for the plaintiff, rejecting defendant’s counter-claim. Judgment was entered, and defendant appealed, stating in the notice of appeal its intention to bring up for review the order denying the motion for leave to serve a supplemental answer. Accordingly the defendant, in making up the case for the appeal, inserted therein the supplemental answer and the affidavit on which said motion for leave to serve such answer was made, and also the order denying such leave. Upon'settlement of the case an order was made striking out said affidavit and supplemental answer from the case, and from that order the defendant also appeals.

It was held in Illius v. Railroad Co., 13 N. Y. 597, that the order of the general term affirming the refusal to transfer the case was not appealable. If this be correct, the defendant could not by appeal have that order reversed. But the defendant could do what was done in a similar case. Stevens v. Insurance Co., 41 N. Y. 149. It could set up the facts showing that the cause ought to have been (and perhaps legally was) removed, and it could then prove these facts on the trial, and thus claim, before the court of appeals, on appeal from the judgment, a reversal for want of jurisdiction. This the defendant attempted to do, but the privilege of setting up these facts by supplemental answer was denied. An appeal from a judgment brings up for review an intermediate order, which necessarily affects the final judgment. The question, then, is whether the refusal to permit the supplemental answer necessarily affected the final judgment. It seems to us that this privilege of reviewing, on appeal from final judgment, an intermediate order, is not to be extended beyond the strict language of the section. A party against whom an order is made by the special term may appeal to the general term. If he neglects to do this within the proper time, it is not reasonable that he should, after the cause has been tried and decided, bring up this order, unless it necessarily affects the judgment. The defendant says, and says correctly, that if the proceedings for removal are regular, in a proper case, the state court is ousted of jurisdiction, whether the order of removal is granted or denied. Shaft v. Insurance Co., 67 N. Y. 544. If defendant, then, is correct as to the law respecting the right to remove this case, (as to which see Leather Manuf'rs Bank v. Cooper, 120 U. S. 778, 7 Sup. Ct. Rep. 777,) this court has no jurisdiction. But whether the order refusing to permit defendant to serve a supplemental answer necessarily affected the final judgment is another question. It may be that if an appeal had been taken from that order we should have reversed it. Whether, if the order had been granted, the final judgment would have been different, depends, partly at least, on what might be proved under the supplemental answer. And clearly there must be a uniform rule as to all refusals to permit supplemental answers being reviewed on appeal from judgment. We therefore think that the order denying leave to file the supplemental answer, whether correct or not, cannot be reviewed on this appeal from the judgment. In this view we see no reason to reverse the order striking out that part of the case.

Tlie defendant on the trial of the case proved the facts claimed to show a removal of the case as aforesaid, and objected to any proceedings, on the ground that the cause was now pending in the circuit court of the United States, southern district of New York, and again moved, on like ground, for a dismissal. We are aware of the decision in Removal Cases, 115 U. S. 1, 5 Sup. Ct. Rep. 1113, and of the Leather Manuf’rs Bank Case, above cited. But we are not prepared to say what the effect of the statute of 1882 is upon this case; and, as the question of removal was once before us, we think it best to adhere to the decision then made. With great respect for the court whose decisions were last cited, we do not see how a claim for money against the defendant, whose corporate existence is admitted, is a suit arising under the laws of the United States, any more than a similar action against a man who had once been a slave would be a suit arising under the laws of the United States, on the ground that his right to sue and be sued was given by the fourteenth amendment.

This brings us to a consideration of the merits. The learned justice who tried this case held that whatever acts were done by Ostrander, the treasurer of plaintiff, in the matter in question, were done as agent for the administrator, and not as treasurer of the bank. We cannot agree with this conclusion, so far as the defendant is concerned. The plaintiff kept an account with defendant. The account in part is given in evidence. It shows, among other things, October 11,1877, 100 Lake Shore, $7,037.50, indicating a sale of stock by defendant for plaintiff. The scrip in question was sent in a letter of the form used for years in plaintiff’s correspondence with defendant. The defendant could not inquire whether the scrip belonged to plaintiff or not. Plaintiff might have had an interest in it or lien upon it, so far as defendant knew. The express charges on this scrip were in the account, and have not been objected to. i

The plaintiff objects that it is not liable, because Reynes & Villere sold 144 shares instead of 194. If this had caused any injury to plaintiff, there would be force in the objection. But the error was a positive benefit to plaintiff; for it diminished the possible liability by $500. There was no direction to sell either the whole or none. An agent authorized to sell a house might not be justified in selling half of it. But unless special directions to the contrary were given, an agent who had shares of stock to sell might sell in parcels, or might sell a part if he could not the whole; or he might sell a part to one person, and the rest to another. Each sale would be valid, and within his authority. So was the sale in the present case.

The defendant did exactly what the plaintiff requested. If in so doing it suffered any loss, or became liable to damage, the plaintiff must indemnify. The defendant assumed no risk as to the power of the administrator to make a transfer. It could know nothing about that. It was for the administrator to know whether he could deliver what he proposed to sell; and it was for the plaintiff to know or to ascertain that, when it'employed defendant to send the scrip to its correspondent. The Germania Bank did just what was proper. It was in accordance with custom and good dealing to make such a sale through a broker. If the Germania Bank had neglected to take this course, and had attempted to make the sale itself, it would have been liable, if it had thereby failed to get the full value. The sale made by Reynes & Villere to Willoz was properly made, and no fault can be charged to them. But neither Reynes ■& Villere nor the Germania Bank could deliver the stock on the next day, when by custom it should have been delivered. For this inability to deliver they were not responsible. It is shown that, unless there be a special agreement, the stock is to be delivered the next day; and it is found that the Ger-mania Bank made efforts to secure the transfer of the stock, but was unsuccessful. The reason given by the company for refusing to transfer, as found, was that there was a contest between the administrator and the heirs. (The word “heirs” was probably used in the civil-law meaning.) And a good deal of argument has been adduced to show that the title to the stock was in H. Joseph Budington, administrator appointed in New York, and that the plaintiff could have compelled a transfer. Perhaps, however, that matter is not directly material. The question is, were Beynes & Villere liable to "Willoz for the failure to deliver the stock at the time it was deliverable? Whether the Crescent City Bail road Company rightfully or wrongfully refused to transfer might be important in an action against that company. But could their wrongful refusal excuse the broker who sold the stock for his failure to deliver? Can we construe the contract of sale as an agreement to deliver, unless the company wrongfully refuses to transfer? Would a purchaser buy, if there were such a condition ?

But, further, the law of Louisiana was proved on the trial. It was shown that under the circumstances above detailed, as to the action of H. Joseph Budington, the assets became vested in the court of Louisiana; that if these scrip certificates were sent from New York to Louisiana with written authority sufficient to effect a valid sale in New York, the sale in Louisiana could be effected only by authority of the court of Louisiana. It is also shown that an administrator cannot be appointed in Louisiana without giving a bond. Now, the law thus proved to exist in Louisiana is the law of this state. Although personal property is subject to the law which governs the person of the owner in respect to succession, yet the right which an individual may claim to personal property in one country under title from a person domiciled in another can be asserted only by the legal instrumentalities provided by the country where the claim is made. Hence an administrator appointed in one state has not, as such, any authority beyond that state. Parsons v. Lyman, 20 N. Y. 103; Stone v. Scripture, 4 Lans. 186. Now, we do not mean that the administrator appointed in New York might not have received the voluntary payment of debts in Louisiana; nor need we say that, if the Crescent City Bailroad Company had voluntarily transferred this stock, such transfer would not (at least according to our laws) have been good. But the doctrine is that the foreign administrator could not compel a transfer, and hence the company could not be said to have acted wrongfully in refusing. This is still more evident, since previous to the time in question an administrator had been appointed in Louisiana. We cannot, therefore, see why Beynes & Villere were not liable to Willoz for the damages. .

The plaintiff urges that Keynes & Villere, the Germania Bank, and the defendant did not give plaintiff an opportunity to compel the transfer. But Willoz was not bound to wait until the remote principal had been notified, and had carried through a litigation against the railroad company. He had his claim on Beynes & Villere, and did not need to go further or to wait. The claim between the brokers was submitted, according to the rules binding them, to the arbitration committee. Whether their award was binding on these parties we need not decide, because the amount of the actual damages has been proved on the trial. On that arbitration Beynes & Villere took the ground that not they, but the Germania Bank, their principal, was responsible. The committee followed a rule alleged to be of the New York Stock Exchange, to the effect that a party to a contract shall not be compelled to accept a principal, other than the broker contracting, unless the name proposed be satisfactory, or be declared at the time of making the offer. This seems to be the common rule, that an agent is liable personally unless at the time he discloses his principal. At any rate, the substitution of the Germania Bank as the party against whom Willoz should make his claim would not have benefited the plaintiff. We do not see that there is any conflict as to the amount of damages sustained, although, probably, the question of the amount of damages may not be before us, and therefore we will not pass upon it.

There is nothing, then, to show that Keynes & Yillere, the Germania Bank, and the defendant did not act severally, in good faith, and in strict accordance with instructions received from the immediate principal of each. So doing, each was entitled to be indemnified by the immediate principal for loss sustained in the discharge of the duties of the agency. Howe v. Railroad Co., 37 N. Y. 297. The plaintiff in a letter to defendant placed its objection to pay these damages on the ground that the Germania Bank should have found out before offering the stock for sale whether it could be transferred. Nothing of that kind can be inferred from the instructions, and the finding of the court is that the Germania Bank was not guilty of negligence. It may also be noticed that after defendant had notified plaintiff of the facts, and plaintiff had declined to admit the charge, the defendant in December, 1877, suggested that plaintiff should make any contest it might desire, and offered to put plaintiff in possession of any needed facts. The plaintiff, therefore, had the opportunity of contesting the matter between defendant and the Germania Bank. Certainly defendant was not bound to litigate. And another fact may be noticed; that is, that H. Joseph Budington, who is the plaintiff’s principal, afterwards, in March, 1884, sold these 196 shares for $19,000, a large advance over the price at the time of the transaction in question; so that he is not a loser by the refusal to transfer. The judgment should be reversed, a new trial granted, costs to abide the event.

Landon, J., concurs.

Ingalls, J.,

(dissenting.) Being unable to adopt the conclusion reached by my associates in this case, I proceed to state my reasons for dissenting therefrom. 1 am convinced that the decision of the learned trial court was in accordance with the facts and the law of the case. The facts in regard to which there is any serious dispute are very few. The action was brought by the plaintiff to recover the sum of $1,440, with interest from April 12, 1878, claimed to be due to the plaintiff from the defendant as the balance upon an account for money deposited with the latter. A draft for such money was drawn by James E. Ostrander, the treasurer of the plaintiff, upon the defendant, and payment was refused. We do not understand but that the amount claimed would be due and owing by the defendant to the plaintiff, were it not for the counter-claim insisted upon herein by the defendant, which consists of money which the defendant claims to have paid to the Germania National Bank of New Orleans, and connected with the sale of 144 shares of the stock of the Crescent City Railroad Company, and which sale of such stock was made under substantially the following circumstances: Henry J. Budington, who was a resident of Kingston, Ulster county, state of New York, was the owner of 194 shares of said stock at the time of his death, which occurred at the city of New Orleans, February 29, 1876. On the 29th day of May, 1876, H. Joseph Budington, the son of the deceased, was duly appointed administrator of the goods, chattels, and credits of the deceased, and as such administrator he took possession of the personal property of the deceased, including the certificates for the said 194 shares of stock. He delivered such certificates of stock, with a power of attorney executed by him as such administrator, authorizing a transfer thereof, to James E. Ostrander, who was the treasurer of the plaintiff, with instructions to Ostrander to send such certificates and power of attorney to the corresponding bank of the plaintiff in the city of New York, requesting such bank to cause the 194 shares of stock to be sold. James E. Ostrander undertook to perform such service, and in the manner found by the trial court, as follows, as appears at folio 243 of case: “Seventeenth. Upon December 6,1877, the defendant received a letter written upon plaintiff’s letter heading, and signed by * J. E. Ostrander, Treas.’ Mr. Ostrander was then the treasurer of the plaintiff. This letter contained said certificates of 194 shares óf the capital stock of the Crescent City Railroad Company of Hew Orleans, and also a power of attorney to transfer the stock, signed by the said Budington, as administrator of Henry J. Budington, in whose name the shares stood, together with a certificate of the appointment of the said H. Joseph Budington as administrator by the surrogate of Ulster county. The letter requested that the defendant would send all this to your correspondent in Hew Orleans, and order the same sold at a price not less than twenty dollars per share.’ ” The defendant received such certificates of stock, with the power of attorney, and transmitted them to the Germania Hational Bank of Hew Orleans, with instructions to sell such stock. The last-named bank placed the certificates in the hands of Reynes & Villere, who were members of the stock exchange, directing them to sell the stock for the best price attainable, not less than twenty dollars a share. They sold 144 shares of the stock at twenty dollars a share, to a person by the name of Willoz. Written memoranda of sale were exchanged, and nothing further was done at the time, and no time was fixed for the delivery of the stock. The Crescent City Railroad Company refused to transfer the stock, upon the alleged ground that there existed a contest between the administrator and the heirs of Henry J. Budington in regard to the ownership of the stock. We do not discover in the evidence any foundation for such pretense on the part of the railroad company. The Germania Hational Bank endeavored to persuade the railroad company to make the transfer, but took no steps to compel such transfer, nor does it appear that such bank even notified the plaintiff or the defendant of such refusal on the part of the railroad company. The transfer not having been effected, the purchaser of the 144 shares of stock claimed damages to the amount of $10 a share, which demand not being complied with, the matter was submitted'to arbitration under what was assumed to be the regulations of the stock exchange; and there was awarded to Willoz the sum of $1,440 as his damages on account of such failure to make delivery of the stock, which sum the Germania Hational Bank paid, without previously notifying either the plaintiff or defendant of the arbitration, or of the award made by the arbitrators, so as to enable the parties interested to take such steps as they might deem necessary to protect their rights. The defendant herein repaid to the Germania Hational Bank the money which was paid by ■ it to Willoz, without previously advising the plaintiff or Budington of its intention to make such payment. Certainly the facts disclose a course of conduct most extraordinary in regard to the attempted sale of the stock. The certificates of stock were subsequently returned to the defendant, and the same were thereafter sent to the plaintiff. The trial court has found in regard to such proceedings the following: “Fifteenth. That no legal steps whatever were taken by either Willoz, Reynes, the Germania Hational Bank, or the defendant to compel the transfer of the stock by the Crescent City Railroad Company to Willoz. Sixteenth. That no opportunity was afforded the plaintiff to compel the transfer of the stock by the Crescent City Railroad Company to Willoz. Seventeenth. That the Crescent City Railroad Company stated that they refused to transfer the stock because they said there was some trouble between the administrator and the heirs of Henry J. Budington, and at the time application was made to them to transfer the stock there existed a contest between the stockholders of the road with reference to securing or controlling the management of the road. Eighteenth. That there was no rule of the Hew Orleans Stock Exchange governing all the questions of the dispute which arose between Willoz and Reynes. nineteenth. That the matter in dispute between Willoz and Reynes was referred to the arbitration committee of the New Orleans Stock Exchange without the knowledge, consent, or privity of the plaintiff. Twentieth. That the arbitration committee of the New Orleans Stock Exchange, finding no rule of that exchange under which they could decide the matter in dispute between Willoz and Reynes, arbitrarily, and without the knowledge, privity, or consent of the plaintiff, the defendant, or the Germania Rational Bank, consulted the rules of other stock exchanges in other cities of the country, and claimed to have adopted a rule of the Rew York Stock Exchange. Twenty-First. That there is no proof that there is or was any rule of the Rew York Stock Exchange of the character claimed to have existed by the members of the arbitration committee of the Rew Orleans Stock Exchange, and under which they made their award. Twenty-Second. That the plaintiff was not informed of the refusal by the Crescent City Railroad Company to transfer the stock until after the award of the arbitration committee of the Rew Orleans Stock Exchange, and the payment of the amount awarded by that committee, by the Germania Rational Bank, to Reynes.”

The sale of the 144 shares of stock was, I think, a violation of the instruction contained in the letter addressed to the defendant, and which constituted the only authority to make the sale of the stock. The direction was to sell all of the shares of stock, being 194 in number, and at a price not less than $20 a share, and no discretion was conferred to sell a lesser number. Thus it appears that the agency related to but one subject-matter, and authorized the performance of but one act, in the manner expressly stated in the letter of instruction, which was free from uncertainty or ambiguity, and was restrictive in its character, and by its terms, fairly construed, directed the sale of the stock in one parcel or block, and at a price not less than $20 per share. It is a fair presumption that the owner of the stock did not desire to sell a portion of the stock, and to retain the residue, and I think such intention is inferable from the letter of instruction and the accompanying circumstances. It does not appear that any effort was made to sell the residue of the stock. This controversy is not between the plaintiff and the purchaser of the stock, but between the plaintiff and the defendant, to which the instruction was given to sell the stock, and which therefore presumably acted with a knowledge of the nature and extent of the authority conferred upon it. I am unable to accept the theory that in the absence of an express direction not to sell a lesser number than 194 shares, the agent possessed an implied authority to sell as many shares, and in such parcels, as was deemed expedient, as the practical effect of such doctrine would seem to be to allow an agent to substitute for an express direction an implied' authority. Suppose an agent should be •directed to sell a farm, at not less than a fixed price per acre, would the agent be authorized to divide the farm and sell a portion thereof, without the knowledge or consent of the owner? I think not. And to my mind the sale of the ;Stock in the manner it was made seems equally, if not more, objectionable. The clear duty of the agent was to offer the entire stock, (194 shares,) and, if a purchaser could not be obtained for the same, that fact should have been ■communicated to the plaintiff, and direction obtained to sell the same in parcels or to return the scrip. Such course seems reasonable. The agency created was special, and not general, and consequently the instructions should have been strictly followed. In Paley, Ag. (3d Amer. Ed.) 201, the author says: “But a special agent, who is employed about one specific act, or certain specific acts, only, does not bind his employer, unless his authority be strictly pursued; for it is the business of the party dealing with him to examine his authority.” See, also, Skinner v. Dayton, 5 Johns. Ch. 351, 365; Bickford v. Menier, 107 N. Y. 490, 14 N. E. Rep. 438. Chief Justice Ruger, after citing the remark of Judge Comstock in Mechanics' Bank v. New York, etc., R. Co., 13 N. Y. 632, that “underlying the whole subject there is this fundamental proposition, that a principal is bound only by the authorized acts of his agent,” proceeds to enunciate the following proposition: “It would seem-to be the general rule that no acts of an agent can be resorted to, to establish a power, not included within the terms of bis commission, except those which are brought to the knowledge of his principals, and are approved or acquiesced in by them.”

Applying that doctrine to the facts of this case, and bearing in mind that the defendant’s claim is for money which the defendant advanced to the Ger-mania National Bank, and that the authority for such advance depended solely upon the power conferred by the letter of instruction to the defendant, which derives no enlargement or support from any reasonable presumption or implication, which in some cases, and under other circumstances, courts-have indulged in favor of bona fide purchasers of personal property, I am unable to discover by what authority the defendant paid to the Germania National Bank for the plaintiff the said sum of $1,440, without first informing the plaintiff of its intention to make such payment, and receiving its assent thereto. The inquiry here involves simply a question of authority, and not of expediency, and consequently it is immaterial whether or not, through the fluctuations of the stock market, the failure to perfect the sale of the 144-shares of stock proved pecuniarily advantageous to the estate of Henry J. Budington. That estate is not represented in this action, and should not be-confounded, it seems to me, in determining the rights of the parties hereto. The plaintiff in this action, not being the owner of the stock, could not be benefited by any advance in price, and consequently that consideration cannot have even an equitable bearing in favor of defendant against the plaintiff herein. The pertinent inquiry is whether the defendant has established, a legal right to withhold from the plaintiff its money upon the pretext insisted upon. The defendant’s claim must rest upon the theory of money paid for the plaintiff at its request, and the facts negative the idea- of any such request, or even acquiescence by the plaintiff in such payment. It appears-that the. instruction to sell the stock was transmitted by the defendant to the Germania National Bank, and therefore both banks acted with knowledge-thereof, and should have followed the instructions contained in the letter, or have asked a modification thereof, as there was abundant opportunity to-do so.

Furthermore, I think the view taken by the learned trial court in regard-to the binding force of the arbitration proceeding, so far at least as the rights of the plaintiff and the Budington estate are concerned, was justified by the-facts established and the law applicable thereto. Neither was heard, or even notified, of the proceeding, and, so far as the evidence seems to disclose, the method by which the damages were adjusted was without precedent, and calculated to work injustice to the owner of the stock. In effect, the plaintiff was called upon to pay $1,440 without being chargeable with any wrongful act, or even a breach of duty, to satisfy the speculative demand of Willoz,. the purchaser of a portion of the stock, awarded to him by such an extraordinary proceeding. The defendant paid the money voluntarily, with a knowledge of all the facts, and without notifying the plaintiff of its intention to make such payment, and now seeks to compel the plaintiff to reimburse it for the money advanced in direct violation of the instruction of the plaintiff and Budington. I am convinced that the decision of the trial court was correct,, and that the judgment should be affirmed, with costs.  