
    Robert S. Tiernan, Respondent, v. George L. Havens, Appellant.
    Second. Department,
    May 15, 1914.
    Principal and agent — evidence — admissibility of declarations of supposed agent to establish agency.
    The rule that agency cannot be established by declarations of the supposed agent applies only to declarations made out of court, and not to material testimony in court.
    
      Appeal by the defendant, George L. Havens, from a judgment of the County Court of Suffolk county in favor of the plaintiff, entered in the office of the clerk of said county on the 4th day of December, 1913, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 5th day of December, 1913, denying defendant’s motion for a new trial made upon the minutes.
    
      George H. Furman [Le Roy E. Raynor with him on the brief], for the appellant.
    
      Warren C. Fielding [Jeremiah T. Mahoney with him on the brief], for the respondent.
   Per Curiam:

Defendant made and delivered a promissory note in the sum of $500, payable to the order of F. E. Fanning. Fanning indorsed the note “without recourse,” and it came into the possession of the plaintiff. Plaintiff has brought this action on the note, setting forth in his complaint that it came into his possession “ in due course ” and for value. Defendant answered, setting forth that the note was given for a consideration which was never performed, and that plaintiff was not a holder thereof in good faith and in due course. According to the record the defendant gave this note to Fanning for a number of shares of mining stock at five cents a share. He never received the stock, so as between him and Fanning there was a complete failure of consideration. Defendant sought to prove that Fanning in the sale of the stock was but an agent of plaintiff, under an agreement by which plaintiff was to pay Fanning a commission on every share of stock he sold. Evidence to support this defense was excluded by the trial court, and a judgment was directed in favor of plaintiff.

On this appeal the respondent furnishes us with a large number of authorities to show that agency can never be established by declarations of the supposed agent. We do not question this elementary rule, but it has application only to declarations of the supposed agent out of court, and does not apply to the material testimony of the supposed agent in court, on the witness stand.

The judgment and order of the County Court of Suffolk county should be reversed and a new .trial ordered, costs to abide the event.

Jenks, P. J., Burr, Thomas, Carr and Rich, JJ., concurred.

Judgment and order of the County Court of Suffolk county reversed and new trial ordered, costs to abide the event.  