
    Richard V. Hartnett, Resp’t, v. Robert E. Westcott, as President, etc., App’lt.
    
      (New York Superior Court, General Term,
    
    
      Filed October 25, 1888.)
    
    Principal and agent—When agent has power to make admissions BINDING UPON THE PRINCIPAL—BBS GESTAE.
    In an action brought to recover the value of a trunk and its contents, which .plaintiff alleged he delivered to the defendant, it appeared that the plaintiff gave the agent of the defendant the check for the trunk and the agent gave the plaintiff the usual receipt therefor. That the trunk, not being delivered to plaintiff, he went to the office of the company and demanded it from the president of the company. Held, that what was said by both parties at the time the demand was made was part of the res gestee of that particular transaction, and related to and accompanied an act done in the course of the agency of the defendant’s president, that it was not error to receive the admissions then made by the president of the company in evidence.
    Appeal from an order denying a motion for a new trial.
    
      Ira D. Warren, for resp’t; Austin G. Fox, for app’lt.
   Truax, J.

The action was tried before the court and jury. A verdict was found for the plaintiff, and thereupon the defendant made a motion for a new trial, “on the judge’s minutes, on the exceptions taken during the trial. and upon the ground that the verdict was against the weight of evidence.”

This motion was denied, and from the order denying this motion the defendant appealed.

The action was brought to recover the value of a trunk and its contents, which plaintiff alleges he delivered to the defendant. The defendant denies that the trunk was ever delivered to it. The plaintiff was on his way to Hew York on one of r the trains of the Hew York Central and Hudson River Railroad company, where one of the agents of the defendant, whose business it was to solicit baggage for transportation, applied to the plaintiff for his baggage. The plaintiff gave this agent a check for a trank, and the agent gave plaintiff the usual receipt therefor. The trunk not being delivered to plaintiff, he went to the office of the company and demanded it from the president of the company.

The principal question in the case arises on the exception taken to the admission of the statement that was made by ' the president of the company at the time this dfemand was made. There is no evidence, other than the admission of the president, that the trunk ever came into the possession of the defendant, and if it was error to receive this statement in evidence, the order must be reversed, and a new trial must be ordered.

A witness was called by plaintiff who testified that some three weeks after the occurrence above-mentioned between plaintiff and defendant’s agent, he (the witness), called upon Mr. Westcott, the president of the defendant, at the office of the defendant, and demanded the trunk or the check. The counsel for the defendant then objected to any declarations or statements made by the witness on the ground that they were “ inadmissible to bind the defendant, having been made after the alleged losses,” and were hearsay. This objection was overruled, and the exception to this ruling presents the principal question in this case. We are of the opinion that this ruling was right. The witness called on the president of the company for the purpose of making a demand on him for the return of the plaintiff’s goods. Certainly the president of a corporation is the proper person on whom one who has delivered property to the corporation should call for the purpose of receiving information about such property- The plaintiff could not recover without alleging and proving a demand and refusal. He had made such an allegation in his complaint. Thus the making of the demand and the refusal to comply with it became one of the issues of the case. What was said by both parties at the time the demand was made was part of the res gestee of that particular transaction and “related to and accompanied an act done in the .course of the agency” of the defendant’s president. See White v. Miller, 71 N. Y., 118.

It is also to be noticed that the defendant objected to “any declaration or statements.” This objection is too broad, for, if sustained, it would have prevented the witness from testifying that the president of the defendant, had refused to comply with the demand.

If it was not error to receive this evidence, then the verdict was not against the weight of evidence. It is true that one of defendant’s employees testified that the trunk never had been received by the defendant, but this evidence, even if it had not been contradicted, was not conclusie (See Becht v Corbin, 92 N. Y., 658), but It was contradicted by the statement of the president that the defendant had received the trunk. It may be that the president had seen •the trunk in defendant’s possession.

We have examined the other questions in the case and . find no error that calls for the reversal of the order. The order is affirmed, with costs, etc.

Sedgwick, C. J.—In my judgment there was no error in denying motion for a new trial, and think that the order should be affirmed, with costs.  