Phillips v. . Campbell , 43 N.Y. 271 ( 1870 )

When the testimony was in, and the parties had rested, the defendant's counsel requested the court to direct a verdict for the plaintiff, "on the ground that the pretended sale and transfer of the property of the corporation by Bramhill was unauthorized and void as against the plaintiffs in the execution, and did not divest the corporation of its title thereto; that there was no proof of the authority to him, either express or implied, from the corporation, to dispose of the same, and it was, therefore, properly levied on under the execution against the corporation." The court so directed: exception.

At the General Term, this direction was sustained. It appeared by the evidence that the sale of the property was made by the witness Bramhill to the plaintiff in payment of a debt he had against the United States Rubber Company; that Bramhill was the treasurer of the company; that the by-laws (which were introduced in evidence) did not confer upon the treasurer power to make this sale; but it was abundantly proved that he had been in the habit of doing such business, with the knowledge and sanction of the company; that he was, in fact, the sole managing agent of the company, and his authority, by its uniform course of business, was ample. This was sufficient. Parties are not confined to any peculiar mode or kind of proof to establish the authority of an agent of a corporation to do an act of this character. (Bank ofU.S. v. Dandridge, 12 Wheat., 79; Conover v. The M. Ins.Co. of Albany, 1 Cow., 290; Mass v. Rossie Lead Min. Co., 5 Hill, 137.)

But the respondent's counsel insists here that he presented another ground for the direction, viz., that the sale was against the provisions of the act prohibiting corporations from transferring property to any one in contemplation of insolvency, and was therefore void. (1 R.S., 603, § 4.) We do not so understand it. Only one ground was presented. He moved on thatground. He made no intimation that the corporation had not the right to make the sale, but only that Bramhill, the treasurer, had no authority to do so. Upon reading his proposition, no one could suppose that he alluded to the incapacity of the company to sell, by reason of the act being done by the corporation in contemplation of insolvency.

The judgment is reversed, and a new trial ordered; costs to abide the event.

All concurring, except GROVER, J., who dissents.

Judgment reversed, and new trial ordered.