
    Katharine A. Hayden et al., Resp’ts, v. Franklin Post, Impleaded, etc., App’lt.
    
      (New York City Court, General Term,
    
    
      Filed April 16, 1895.)
    
    Principal and auent — Liability—Presumption.
    Where a broker is apprised, pending the negotiations, that the person who employed him to sell the property is acting as the agent of his wife who is the owner, he is presumed to have dealt with the husband during the rest of the negotiations as such agent, unless there is evidence to show an original undertaking on the latter’s part to pay the commissions.
    Appeal from a judgment in favor of plaintiffs.
    
      Baldwin & Blackmar, for app’lt; William E. Stillings, for resp’ts.
   McCarthy, J.

The evidence shows that the property in question was owned by Lena Post at the time of-the alleged employment of the plaintiffs, and therefore pending the negotiations. It also appears that such fact was made known to the plaintiffs pending the negotiations, and long before the signing of the contract and the consummation of the exchange. The plaintiffs, having been thus apprised of the agency of Franklin Post, must be presumed to have dealt with him during the rest of the negotiations' as the agent of his wife, the owner, unless we find some evidence to show an original undertaking on the part of Franklin Post to pay for these services. Otherwise, it would be an attempt to compel him to pay the debt of another, for which he would not be liable, unless in conformity with the statute of frauds. We have carefully examined the testimony, and have been unable to find any evidence showing a promise on the part of Franklin Post to pay. We think, therefore, that the court erred in not dismissing the complaint, as to Franklin Post, at the close of the plaintiffs’ case. Of course, on the new trial, by showing either the authority of Franklin Post to act for his wife, or that she participated in the negotiations or ratified his acts by any conversation or acts on her part, Lena Post would be liable. Again, the plaintiffs may-show the amount of commission to be paid, as settled by custom,, but they cannot prove no liability or employment by custom. There must be an employment of the plaintiffs by Franklin Post, and a participation or ratification by Lena Post, the principal, in order to make her liable. If the case had been tried on this line, the plaintiffs might have been successful. Without passing further upon the other questions raised, the judgment herein should be reversed, and a new trial granted, with costs to appellant, to abide the event.  