Industrial Manufacturers, Inc. v. Bangor Mills, Inc. , 283 A.D. 113 ( 1953 )

Peck, P. J.

(dissenting). If the only predicate of liability on defendant’s part were that of Shetzline’s agency in buying yarn for defendant, I would concur with the majority in the dismissal of all causes of action. In my opinion, however, irrespective of any question of Shetzline’s agency in the buying of yarn, defendant is liable on the check which Shetzline issued because the account on which it was drawn was in fact defendant’s account and defendant had placed the account in Shetzline’s hands and authorized him to draw upon it. I, therefore, vote to affirm.

Cohn and Breitel, JJ., concur with Bastow, J.; Dore, J., dissents in part, in opinion; Peck, P. J., dissents and votes to affirm, in opinion.

Judgment, so far as appealed from by the defendant-appellant, reversed with costs, and judgment is directed to be entered in favor of the defendant dismissing the second cause of action set forth in the complaint, with costs. Judgment, so far as appealed from by the plaintiff-appellant, affirmed.

Settle order on notice.