
    (49 Misc. Rep. 301.)
    SANFORD v. FOUNTAIN.
    (Saratoga County Court.
    January, 1906.)
    1. PBrNOTPAL AND AGENT—EVIDENCE OF AGENCY.
    Declarations of an alleged agent to a third party, in the absence of his principal, are insufficient to establish the agency.
    [Ed. Note.—For cases in point, see vol. 40, Cent. Dig. Principal and Agent, § 416.)
    2. Same—Ratification.
    Where plaintiff sued to recover on a contract alleged to have been the act of defendant’s agent, the burden of proof is on plaintiff to show that the agent’s act was ratified by his principal.
    [Ed. Note.—For cases in point, see vol. 40, Cent Dig. Principal and Agent, § 659.]
    3. Same—Evidence of Agency.
    Plaintiff sued to recover on a contract made with defendant’s alleged agent for services, and offered testimony of conversations with the brother of the alleged agent when defendant was not present. The testimony was received under a stipulation that it be stricken out by consent unless plaintiff further showed that the brother was acting at the time as defendant’s agent. There was no evidence of such agency other than as shown from the statements of the brother. Held, that the complaint should have been dismissed on the ground that a cause of action had not been proven.
    Action by Francis Sanford against Frank Fountain. From a judgment of a justice in favor of defendant, plaintiff appeals.
    Reversed.
    J. W. Atkinson, for appellant.
    D. A. Lockwood, for respondent.
   ROCKWOOD, J.

The defendant has appealed from a judgment rendered against him by a justice of the peace in the sum of $18.25 damages and costs after a trial by jury. In his complaint, the plaintiff avers that in October, 1903, “plaintiff entered into an agreement with defendant to act as his agent in obtaining a load of freight for defendant at or near the village of Mechanicville, N. Y., to be transported by defendant on a canal boat over the Champlain Canal and other waters, for which services the defendant agreed to pay the plaintiff the sum of $10 as commission”; that plaintiff performed his part of the agreement but that the defendant had refused to pay for the services. The answer was in effect a general denial.

The plaintiff was the only witness called and sworn in support of his cause of action. He did not testify to having had any conversations with the defendant concerning his employment, but based the alleged contract for services upon conversations with one Irving Fountain, claimed by the plaintiff to be defendant’s agent. The only evidence germane to this branch of the case is to be found in the following extract from the testimony:

“Q. Did you subsequently have a conversation with Irving Fountain, the brother of tile defendant, with reference to securing a boat load of bricks for ‘-'the defendant?”

This was objected to by defendant’s counsel “on the ground that the defendant was not present and is incompetent, as Irving Fountain was not the defendant’s agent.” The plaintiff’s counsel then stated ‘‘That such conversation might be stricken out with his consent after it had been stated by the witness, unless plaintiff shows that Irving Fountain was acting at the time of the conversation as the defendant’s agent.” With this understanding the evidence was received by the justice, the plaintiff testifying at length to a conversation with Irving Fountain, had in the absence of the defendant. This conversation was the important element of the case, and upon it the plaintiff rested his cause of action.

Unless Irving Fountain was the duly constituted agent of the defendant, his agreement to pay the plaintiff a commission was clearly not binding upon the defendant. Agency cannot be established by the declarations of an agent to a third party made in the absence of the principal. Lyon v. Brown, 31 App. Div. 67, 52 N. Y. Supp. 531; Booth v. Newton, 46 App. Div. 175, 61 N. Y. Supp. 727; Brigger v. Mutual Reserve Fund Life Ass’n, 75 App. Div. 149, 77 N. Y. Supp. 362; Leary v. Albany Brewing Co., 77 App. Div. 10, 79 N. Y. Supp. 130; Foster v. Bookwalter, 78 Hun, 355, 29 N. Y. Supp. 116; Marvin v. Wilber, 52 N. Y. 273; People’s Bank v. St. Anthony’s R. C. Church, 109 N. Y. 525, 17 N. E. 408. Beyond the inference to be drawn from the statements of Irving Fountain, there was no evidence of his agency for the defendant, so that, had a motion been made to strike out this testimony, it should have been granted in accordance with the stipulation under which it was received. The fact that such motion to strike out was not made should not, however, prejudice the defendant, as his counsel had seasonably objected to its reception, and at the close of the plaintiff’s case moved for a dismissal of the complaint upon the ground that a cause of action had not been proven. Eliminating this objectionable hearsay testimony of the conversation with Irving Fountain leaves the record wholly barren of proof upon which to found a verdict for the plaintiff.

The respondent’s counsel urges that the defendant ratified the agreement made with Irving Fountain and that defendant’s own testimony is to that effect. The burden of proof was upon the plaintiff to show the merit of his cause of action by a fair preponderance of the evidence. This he has failed to do, and there was no competent evidence upon which the jury could have found a verdict for the plaintiff. As the case stood at the close of the plaintiff’s case, defendant’s motion for a dismissal of the complaint should have been granted. Other hearsay and incompetent testimony was received over the objection of defendant’s counsel, but the conclusion reached above renders its discussion unnecessary.

The judgment appealed from is reversed, with costs.

Judgment reversed, with costs.  