Huott v. Wood , 167 N.Y.S. 754 ( 1917 )

Per Curiam:

As defendant Wood was not the authorized agent or attorney of the plaintiff Mrs. Borst, his representation after his telephone communication with her that she would give a release and discontinuance to one of the plaintiffs, who knew that she had another attorney, was not actionable in the absence

of fraud or bad faith. It appeared that Mrs. Borst after-wards declined to give any release. Her reasons are not brought out here, because she was not a party to this suit. Under the judgment requiring appellant to perform and consummate this oral agreement to compromise all the pending suits, and even matters not in suit, appellant Wood is made an indemnitor of one plaintiff against any cross-liability toward Mrs. Borst. Without fraud or misrepresentation, he should not be so held because a woman, not his client, changed her mind. Varium et mutabile semper fcernina. The circumstances do not show any proper basis for the equity decree, especially where the original actions for damages which were attempted to be compromised, have not been dropped, but are still pending.

Jenks, P. J., Thomas, Rich, Putnam and Blackmar, JJ., concurred.

Findings as resettled, numbered IX, XII, XIII, XIV, are reversed and conclusions of law rescinded, and defendant’s requests numbered 14 and 15 are found. Judgment reversed and complaint dismissed, but without costs of this appeal to either party.