
    CONABEER v. BRUENN.
    (Supreme Court, Appellate Term.
    February 18, 1910.)
    Pkincipal and Agent (§ 123)—Authobitt op Agent—Evidence.
    Evidence held to warrant a finding that defendant’s janitor was authorized to purchase the coal sued for as defendant’s agent.
    [Ed. Note.—For other cases, see Principal and Agent, Dec. Dig. § 123.]
    Appeal from Municipal Court, Borough of Manhattan, Seventh District.
    Action by John S. Conabeer against Adolph Bruenn. From a judgment dismissing the complaint on the merits, plaintiff appeals.
    Reversed, and new trial ordered.
    Argued before SEABURY, P. J., and LEHMAN and BIJUR, JJ.
    Wm. C. Relyea, for appellant.
    Samuel Greenbaum, for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   BIJUR, J.

This action was brought for $25, value of four tons of coal delivered on November 3, 1908, and used in premises under lease to defendant, namely, two “hot-water flats.” Plaintiff’s testimony is that this coal was ordered by the janitor in the usual way, and that defendant had paid for coal previously ordered in the same way for more than a year. Plaintiff also testified to conversations had with defendant, in which the latter apparently fully confirmed the janitor’s authority in the premises.

Defendant, who took the stand on his own behalf, merely denied having one of these conversations with the plaintiff about this particular coal in suit. No motion to dismiss was made at the close of plaintiff’s case, and defendant’s testimony certainly did not negative plaintiff’s proofs. A dismissal, therefore, on the merits, was not only unwarranted, but a dismissal under any circumstances was error. Clark v. Scovill, 133 App. Div. 821, 118 N. Y. Supp. 235.

Judgment reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.  