
    Hermann Norden and William Nicholas, Schill, Appellants, v. Brodie L. Duke, Respondent.
    
      Attachment — not vacated on motion on grounds involving the merits of the action — decla/rations made by an agent as to his authority to act.
    
    The court will not grant a motion to vacate an attachment, made on grounds which involve the merits of the action, but will deny the motion and leave the questions involved for disposition at the trial.
    The rule, that the admissions and declarations of an agent cannot be received to establish the fact of his agency or the nature and extent of his.áuthority, relates ■ to admissions and declarations madei by the agent to third persons, and-has no application to admissions and declarations made by the agent when called as a. witness to testify to the relations existing between himself and his principal,
    Appeal by the plaintiffs, Hermann Norden and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of June, 1905, vacating upon the merits a warrant of attachment theretofore granted in the action.
    
      Charles Blandy, for the appellants.
    
      William F. Goldbeck, for the respondent.
   Hatch, J.:

The action was brought to recover the sum of $4,500, with interest thereon from the 22d day of December, 1903. The warrant of attachment in the action was issued upon the ground of the non-residence of the defendant, which is not denied. The plaintiffs are cotton brokers, and on the 22d day of December, 1903, they received an order purporting to come from the defendant to sell upon the stock market for him 2,000 bales of March cotton at a given price. The order was executed, cotton continued to rise in price, and the defendant suffered a loss. The notice of motion does not specify any grounds of irregularity, but as the order was made upon the merits, it went to the substance of the matter. Therefore, rule 37 of the General Rules of Practice, requiring specification of the irregularity relied upon, does not apply. (Martin v. Aluminum Plate Co., 44 App. Div. 112.)

It appears by the proof upon which the attachment was granted that the order to sell the cotton was given by telegraph in the name of the defendant. In fact, it was sent by one Bramham, claiming to act as the defendant’s agent. The motion to vacate was granted upon the sole ground that there was not sufficient proof that Bramham was authorized to order the sale of the cotton by the ■ defendant. Facts are disclosed in the proof upon which the attachment was granted from which a jury would be authorized to find that Bramham did have authority to transact the defendant’s business and to give the order in question. It appeared that Bramham had been in the employment of the defendant as his private secretary for a number of years; that he transacted considerable business for him, sometimes by his direction, and sometimes without special authorization. While he was not specially authorized in the present case, yet it appears that when the defendant was informed of the transaction he did not repudiate it or Bramham’s authority to make it, but simply remonstrated with him for having done it. It is quite easy to see that upon a trial it may be established that Bramham had authority to give the order. Under such circumstances, the court will not consider the merits of the action, but will deny the motion and leave such question for disposition by the trial court. (Furbush v. Nye, 17 App. Div. 325.)

In some measure the cause of action depends upon a construction of the telegrams and letters that passed between the parties in the making and execution of the order. In some respects the language relating to the execution of the contract after the order was given is ambiguous., and the case may admit of parol proof to explain such ambiguity. It would, therefore, be manifestly improper for.the court; Upon this motion to determine the legal effect of the. writings, ■which may be explained by parol proof and thereby their,construction be made plain. (Kirby v. Colwell, 81 Hun, 38.5.) •

The respondent, seeks to invoke the rule that admissions and . declarations of an agent cannot be received to establish' the fact of his agency or the nature and extent of his authority. This rule, however, relates to admissions ■ and declarations by the agent to third persons. It has no application to statements made by the agent when called as a witness to testify to the relations that exist between himself and his principal. ■ His testimony under such circumstances is neither an admission nor a declaration. It is evident that what the relation was and its nature can be explained fully by the agent under such circumstances. In the present case it appeared that the deposition of the agent had been taken under -an order of the court, and.the proof as to his. agency had been given under the sanctity of an oath and in a judicial proceeding. It, therefore, fur.nished competent testimony of the extent and character of his authority.

, . The order should, therefore, be reversed,' with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

O’Brien, P. «L, Patterson, Ingraham and McLaughlin, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten' dollars costs.  