
    ALFRED SWART, Respondent, v. ROBERT S. LIVINGSTON, Appellant.
    
      Agency—statement of alleged agent to tim'd person—effect of its admission in evidence.
    
    Appeal from a judgment of the County Court of Columbia county in favor of the plaintiff for $186.18 damages and costs, and from an order denying a motion for a new trial.
    The only point raised in this case was on the objection to a question put to one Crawford, whether he told the plaintiff, when he • hired him, that he hired him for the defendant. The court held, that the admissibility of that evidence depended on Crawford’s authority from the defendant; that is, it depended on his agency. If Crawford was defendant’s agent to hire the plaintiff, then what he said in hiring was admissible as part of the res gestee; otherwise not. That Crawford’s agency was a question of fact on which the evidence was conflicting. The defendant might have asked the court to instruct the jury, that if Crawford was not otherwise shown to • be the defendant’s agent to do this hiring, then the statement made by him at the time would have no weight; but no such request was made. The court held, that it could not say as matter of law that Crawford was not the defendant’s agent, for the jury must have found that he was; and, therefore, it could not say that there was error.
    The judgment and order were affirmed.
    
      J. B. Longley, for the appellant.
    
      R. E. Andrews, for the respondent.
   Opinion by the court.

Present—Learned, P. J., Boardman and James, JJ

Judgment and order affirmed.  