
    William H. Mook, Resp’t, v. Parke, Davis & Company, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed June 4, 1894.)
    
    1. Principal and agent—Reference.
    Where a person is referred by another to a third party, with full knowledge of the former’s application for employment, whatever such third party does in the matter of such application is as much the act of such second person as though the latter personally transacted the whole business.
    S. Appeal—First instance.
    Where the materiality of evidence is not clearly apparent, a purpose, for which such evidence is admissible, not having been presented upon the trial, cannot be urged on appeal as ground for reversal.
    Appeal from a judgment entered upon the order of the general term of the city court of New York, affirming a judgment entered upon the verdict of a jury and an order denying defendant’s motion on the minutes for a new trial.
    
      Chambers & Boughton, for app’lts ; Burr & De Lacy, for resp’ts.
   Bookstaver, P. J.

his action was brought to recover damages for the wrongful discharge of the plaintiff, whose testimony was to the effect that he called at the office of the defendant company, dealers in drugs and physicians’ supplies, and asked its manager, one Olay, for employment as a traveling salesman and Was referred by him to one Templeton who was in the same buildiug, in the office in the rear, and who was represented by Clay as having charge of the salesmen. Clay denied upon the stand, that he told plaintiff that Templeton had charge of the salesmen, but it is significant that he did not deny sending plaintiff to Templeton and he admitted that, so far as he could remember, the conversation was in general as the plaintiff had testified. He expressly disclaimed however any distinct recollection of the details of the meeting. Undéi the authority of Benesch v. John Hancock M L. Ins. Co., 16 Daly, 394; 32 St. Rep. 73, if the plaintiff was referred by Clay to Templeton, with full knowledge of plaintiff’s application for employment, whatever Templeton did in the matter of the application was as much the act of Clay as if the latter„ personally transacted the whole business and, in this aspect of the case, the question whether Templeton, in fact and independently of this reference to him by Clay, had authority to employ the plaintiff on defendant’s account, is immaterial and it was proper for the trial judge to exclude all evidence that went to show that he did not have any such authority. The plaintiff however did not stop here, but introduced a new issue by putting in evidence a check as follows: “ New York Branch ; Parke, Davis & Co., John Clay, Manager. No. 3623 N. Y., May 15, 1890. Phenix Hational Bank. Pay to the order of W. H. Mook, one hundred- OO-100 dollars, $100 00-100 John Clay,” which he received on account of salary as salesman. It is argued that this, being a direct payment from the defendant "to the plaintiff, was a recognition of him as an employee and a ratification by the defendant of the contract, even conceding that it was not originally enforceable against it. Clay however testified that this check “had nothing to do with the business of Parke, Davis & Co.,” and that it was drawn in pursuance of a specific contract between himself and Temple-ton. The appellant’s chief reliance is upon error alleged to have been committed by the trial judge in excluding certain contracts, and other writings, between Templeton and the defendant. Parts of these writings disclose the fact that Clay was Templeton’s attorney in fact for the purpose of making certain payments, including salaries of salesmen employed by Templeton individually in accordance with the contract on his part to place the products of the defendant company upon the market in this manner. It is argued upon the appeal that this agreement should have been admitted as it was important "corroboration of Clay’s testimony that the check was given by him personally in pursuance of a contract with Templeton. The weakness okthe appellant’s position is that the argument, so cogently made here, was not presented at all upon the trial. Sterrett v. Third Ave. Ry. Co., 122 N. Y. 659 ; 34 St. Rep. 241; Akersloot v. Second Ave. Ry. Co., 30 St. Rep. 146. There the effort was to get these papers in to prove that Temple-ton had no authority to act for the defendant in the employment of salesmen;' and for that purpose they are inadmissible. The writings were long and only a few lines were material and even these to but a single issue involved and from that issue the attention of the court was called by the language of the offer which was as follows:

“I again offer these papers to show, first, that Templeton was not employed by Parke, Davis & Co., that he had no authorty to employ any salesmen, etc.” Had the trial judge’s attention been called to these portions, and their relevency urged, there can be no doubt but that he would have admitted them, as is shown by his ruling made just afterward, but in connection with other evidence, “I will allow you to explain that check, or any other check given by the witness (Olay), as .that is in rebuttal of testimony already in.” Against the question “ was there any paper executed which provided Templeton should draw any orders upon you for mon,ey that might be due to Templeton or to his employees,” and other similar subsequent ones which, were excluded, the same objections lie; their materiality was not clearly apparent, especially with the mind of the court under a misapprehension as to the object of the questions induced by the repeated attempts of counsel to get in the same kind of inadmissible evidence for the same pui'pose. This also explains and justifies the court’s, interruption: “I will exclude the papers marked for identification; I will also exclude any offers,” which, as we understand it, was no more than an attempt to forestall any further attempts of a similar kind. The clhim that other questions asked and excluded should have been allowed because they were designed to contradict testimony previously given by the plaintiff cannot be supported. Mo objection was made at the time to the admission of such testimony, nor had the issues •' then become so well defined that it was apparent that the testimony admitted was immaterial.

The judgment must, therefore, be affirmed with costs.

Bischoff and Pryor, J. J., concur.  