
    William Lanahan et al., Respondents, v. The Henry Zeltner Brewing Co., Appellant.
    (Supreme Court, Appellate Term,
    June, 1897.)
    1. Goods sold— Title to a liquor store — Evidence.
    Where the main issue, in an action to recover for liquors sold and delivered, is whether the premises, which were used as a liquor store, belonged to the defendant or to a person who managed them, proof that the defendant was in the habit of taking licenses for liquor stores which it controlled in the name of some one of its employees, that it had. followed this practice in the case of the liquor store in question, and that it had discharged the former manager and appointed a new one, tends to show that the liquor store was the property of the defendant.'
    
      2. General motion to dismiss is unavailing.
    A' motion to dismiss an action- and which fails to specify any defect • in the proof of the plaintiff -does not raise any question upon an appeal.
    3. Admissions of agent.
    Admissions of an agent made in and about matters connected with his- agency are competent against- the principal. .
    Appeal by defendant from affirmance by'the City Court, General Term, of a judgment in. favor of plaintiffs.
    Langbein Brothers & Langbein, for appellant.
    Leventritt & Nathan (D. Leventritt, of counsel), for respondent.
   McAdam, J.

The action was to recover the price of certain liquors sold and delivered by the plaintiffs to the defendant.

Upon the trial it was conceded that there had been a sale and delivery of the goods, and that the sum remaining due thereon was $220.90. The sole contention submitted to the jury was as to whom the goods were sold. They were delivered at the liquor store corner of One Hundred and Sixteenth street and Second avenue, and one of the questions litigated was whether the store belonged to the defendant, or to one Timothy Sullivan, who managed it.

It was proved that the license to the store was taken out in the name of one Massimino, an employee of the defendant, for its benefit, and that the defendant subsequently discharged Sullivan from the management of the store and put another person in to run ■ it. It was also proved that the company was in the habit of getting licenses for places they controlled in the names of different employees. These circumstances tended strongly to show ownership of the store in the defendant, and were sufficient at least to justify the submission of the question for determination.

The defendant’s representative, Mr. McKinney, introduced himself to Mr. Dunn, the plaintiffs’ agent, and handed the latter one ■ of the defendant’s cards, upon which was printed “ Presented by James McKinney,” and at the same time stated that he was the representative of The" Henry Zeltner Brewing Company; that the defendant was refitting the store in question and was going to place . a good man there, and that they desired the plaintiffs’ goods so that they might more successfully compete with the corner saloon across the way. Dunn thereupon went, to the store and saw Sullivan, who in response to an inquiry as to his commercial rating said that he was but an employee there, and that Dunn would have to see McKinney. Dunn did so, and received the following reply from McKinney: “ Tou put them in there. It is for The Henry Zeltner Brewing Company. The Henry Zeltner Brewing Com-' pany is good enough, is it not?” To which Dunn replied: Tes, certainly.” And McKinney continued: “We are fitting up this place for him, but I want the goods billed to Sullivan because I do not want it known that we have this place on our hands.”.

Dunn then took- an order from Sullivan for one barrel of Ziegler blend whiskey and one half barrel of Hunter No. 1 rye, and reported this to McKinney, who after looking over the order said: “ That is not the way to do business. That’s a picayune way. Put down a whole barrel there.” And McKinney then made the correction upon the very card of the brewing company which had been presented by him to Dunn; and the goods were thereupon delivered at the store.

There was certain correspondence between the plaintiffs and defendant in regard to the responsibility of the latter for the bill in suit.- In one of the letters inclosed by the plaintiffs to the defendant was a statement that Sullivan had been introduced to Dunn by McKinney, the agent of the defendant, who said that The Zeltner Brewing Company would be responsible for the bill, and the plaintiffs wrote asking the defendant to advise them if McKinney made a correct statement, to which the defendant replied that they had seen McKinney, and that he had informed them that no such assurance had been given. The. defendant in no manner disputed the agency of McKinney or his power to bind the defendant if he undertook to do so.

The exceptions to the admission of evidence of conversations with McKinney were obviated by proof subsequently introduced that McKinney was the agent of the defendant, so as to-make his declaration pending the negotiations for the purchase admissible. The objections made were really to the order of proof, which is always in'the discretion of the trial judge. Bayl. Tr. Pr. 173.

The facts proved with the inferences to be drawn from them sufficiently connected the defendant with the sale so as to warrant the submission to the jury of the question whether the credit had been extended to the defendant or to Sullivan, and the jury by their verdict found that it had been extended to the defendant.

■Upon the close of the plaintiffs’ case the defendant moved to dismiss on the ground that no authority had been, shown on the part of McKinney to bind the defendant, and that the letter referred to a mere “general” agency, and not an agency to. bind for the. sale and purchase of goods. So that in the motion it was not contended that McKinney was an agent having special and limited powers, but rather that his was a general agency. And upon the conclusion of the entire case the defendant’s counsel merely said: “I make a motion to dismiss.” He did hot state that he renewed the motion formerly made, nor claim that the grounds then specified were still tenable. Such a motion fails to specify any defect in the plaintiffs’ proof, and is not available on appeal. Kafka v. Levensohn, 18 Misc. Rep. 202, 205; Gerding v. Haskin, 141 N. Y. 520; Quinlan v. Welch, id. 165; Adams v. Irving Nat. Bk., 116 id. 614; Binsse v. Wood, 31 id. 526.

The defendant did not reply upon the motion to dismiss made at the close of the plaintiffs’ case, but offered evidence in defense,, and if on the conclusion of the trial the record sufficiently established the plaintiffs’ right of action they were entitled to go to the jury. Berg v. Parsons, 84 Hun, 60, 62; O’Connell v. Samuel, 81 id. 357; Leslie v. Knickerbocker Life Ins. Co., 63 N. Y. 31, 32; Tiffany v. St. John, 65 id. 317; Bartholomew v. Lyon, 67 Barb. 86; Painton v. R. R. Co., 83 N. Y. 7; Pollatschek v. Goodwin, 17 Misc. Rep. 587.

The casé séems to have been fairly submitted to the- jury under a charge to which there is no exception.

The exceptions are without merit, and the judgment must be affirmed, with costs.

Daly, P. J., and Bischoff, J., concur.

Judgment affirmed, with costs.  