
    Naughton Company, Respondent, v. The American Horse Exchange, Appellant.
    (Supreme Court, Appellate Term,
    January, 1906.)
    Principal and agent — The relation between the parties — Creation and existence — Acts and declarations of agent.
    Evidence — Presumptions — Absence of witness.
    Where in an action to recover on a contract for relaying a piece of sidewalk in front of defendant’s property the position and duties of the alleged agent of defendant, with whom the contract was made, were of such a nature as to preclude any implication of authority,- and plaintiff is unsuccessful in its efforts to show that defendant’s treasurer authorized the making of the contract, m* permitted the work to go on knowing that plaintiff was relying on the alleged agent’s assumed authority in the premises, plaintiff fails to make out a prima fame case.
    Although there was nothing to show that the alleged agent, who, at the time of the trial, was not in defendant’s employ nor under its control or direction, could not be produced, defendant’s failure to call him as a witness created no presumption against it; nor was it called upon to enter upon its defense until the plaintiff had made out a prima facie case.
    Appeal by the defendant from a judgment in favoY of the plaintiff rendered in the Municipal Court of the city of Hew York, tenth district, borough of Manhattan.
    
      Jay & Candler (Andrew E. Murray, of counsel), for appellant.
    Benjamin Trapnell, for respondent.
   Scott, J.

In this action the plaintiff seeks to recover, under an alleged express. contract, for relaying a piece of sidewalk in front of defendant’s property. The plaintiff was a subcontractor for the construction of a section of the subway and, in the prosecution of this work, found it necessary to remove a portion of an asphalt block pavement in front of defendant’s premises. The piece thus necessarily removed was bounded on the outside by the curb line and on the inside by a diagonal line which, if extended, would have cut the curb line at an acute angle. This sidewalk, of course, it was under an obligation to replace; and its contention is that the defendant entered into a contract with it to relay the whole sidewalk, so as to have it uniform in character, and agreed to pay therefor the sum for which this action is brought. That there was an agreement to this effect, made between plaintiff and a man named Elack, claiming to represent defendant, there can be no doubt. It is also perfectly clear that Elack’s position and duties were of such a nature that no implication of authority to bind the defendant to such a contract can be inferred. The only responsible officer of the defendant who is mentioned in the evidence as authorized to contract in its behalf is the treasurer, Ware; and the plaintiff’s whole efforts have been directed to showing that Ware authorized Elack to make the contract, or permitted the plaintiff to go and do the work, knowing that it was relying on Flack’s assumed authority to contract in his (Ware’s) name. In this, I think, we must ■say that the plaintiff was unsuccessful. The plaintiff read in evidence certain letters addressed to Ware, showing that plaintiff had been negotiating with Elack in regard to relaying the sidewalk and making a definite offer, and a letter from Flack, in reply, accepting the proposition. If it had been shown that these letters reached Ware before the work was done, the plaintiff would have gone far toward establisting a contract, but the only evidence on the subject is all the other' way. Ware, called as plaintiff’s witness, testified distinctly that at the time of the correspondence he was in the West; that the letters were handed to him in a bunch after his return, and that the matter had been acted upon at that time. This testimony at once negatives any presumption or assumption that Flack’s letter to plaintiff, assuming to make a contract in behalf of defendant, was written with the express or implied authority of Ware. It does not help plaintiff to say that Ware’s memory was indistinct as to some matters concerning which he was interrogated. The obligation rested upon plaintiff to show Elack’s authority, and it does not show it by demonstrating that its witness might have established it, if he had shown a clearer recollection than he appeared to have. Undoubtedly it was natural enough for plaintiff to assume that Elack had proper authority to speak for Ware, but this belief was induced merely by Elack’s assumption of authority, and not by anything done by Ware or the defendant. The whole matter could, probably, be cleared up by calling Flack as a witness, and there is nothing to show that he cannot be produced. ISTo greater obligation rests upon the defendant to produce him than rests upon plaintiff, if, indeed, there is as much. It appears that he is not now in defendant’s employ, or under its control and direction; and, therefore, no presumption unfavorable to defendant is to be attributed to its failure to call him, nor is the defendant called upon to enter upon its affirmative defense until the plaintiff has made out a prima facie case.

The judgment must be reversed and a new trial granted, with costs to appellant to abide the event.

Blanchabd and Dowling, JJ., concur.

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