
    The M. D. Williamson Company, Respondent, v. Jacob Cooper, Appellant.
    (Supreme Court, Appellate Term,
    February, 1906.)
    Principal and agent — Actions by third persons — Evidence — Declarations of alleged agent".
    "Proof of the declaration of an engineer that he ordered coal on behalf of the defendant and another is not admissible to establish the fact that he was their agent and, it appearing that he was not their agent, the proof of such declaration should be stricken out.
    Appeal by the defendant from a judgment in favor of the plaintiff rendered in the Municipal Court of the city of Hew York, eleventh district, borough of Manhattan.
    Hyman Cohen, for appellant.
    Ovitt & Graves (George D. Graves of counsel), for respondent.
   Greenbaum, J.

The order for coal the price of which is here sought to be recovered was given by Smith, an engineer.

Testimony was taken to the effect that Smith stated that the coal was ordered in behalf of Cooper and Gottlieb.

Smith denies that he so stated; and both Cooper and Gottlieb testify that Gottlieb with two others operated the theatre, for which the coal was used, and that Cooper had nothing whatever to do with the management of the theatre, his relation thereto being that of lessor of the building.

Smith and Gottlieb both testified that Smith was not and had not been in the employ of Cooper, but that he was employed by Gottlieb and his associates and that Gottlieb always paid him his salary.

It was thus incontrovertibly shown that Smith was not Cooper’s agent and, therefore, any declaration made by him was inadmissible and the motion to strike out this testimony should have been granted. Smith v. Bradhurst, 18 Misc. Rep. 546; Snook v. Lord, 56 N. Y. 604.

The only connection of Cooper, against whom judgment was entered, with the transaction in suit was that, on one occasion, a check of Cooper & Feeder was sent to plaintiff for a bill of coal delivered on these premises.

The explanation of Cooper and Gottlieb as to this check is that Gottlieb obtained it in exchange for cash which Gottlieb gave Cooper.

It is difficult to see how, under all these circumstances, Cooper can be justly mulcted for the payment of plaintiff’s claim.

Soott, J., concurs.

Giegebioh, J., concurs in result.

Judgment reversed, new trial ordered, with costs to appellant to abide event.  