Leiman v. Seely , 136 N.Y.S. 35 ( 1912 )

SEABURY, J.

The complaint alleges that on September 26, 1911, plaintiff delivered to the defendant an electric beer pressure pumping machine, for the purpose of having the defendant repair the same, and that the defendant has refused to return the machine, although demand for it has been duly made.

The evidence showed that the pumping machine was sold by the defendant to the plaintiff in March, 1910. The sale was made on behalf of the defendant by one Tollman, who was then in his employ. Subsequent to the delivery of the pumping machine to the plaintiff, Tollman called twice at the plaintiff’s place of business and made minor repairs upon the machine. On September 25, 1911, Tollman again called on the plaintiff and took the machine away with him, saying that he would cause necessary repairs to be made. The evidence shows that in April, 1911, Tollman was discharged from the employment of the defendant, and that the defendant never authorized him to take the machine from the possession of the plaintiff. In this state of the proof, and without evidence tending to show that Tollman was the authorized agent of the defendant when the machine was delivered to him, it was error for the court below to render judgment in favor of the plaintiff.

The record is burdened with other errors; but, as a new trial is to be had, it is unnecessary to discuss them.

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