Connell v. Ernst-Marx-Nathan Co. , 71 N.Y.S. 313 ( 1901 )

Per Curiam.

The plaintiffs failed to prove any authority in Carl Ernst, the treasurer of the defendant company, to bind or obligate it by his contract; and, as there was a failure to establish the cause of action alleged, the court below shquld have dismissed the complaint. The case of Parmelee v. Associated Physicians & Surgeons, 9 Misc. Rep. 458, is an authority directly in point. In that case, the plaintiff sued upon a contract of employment, which he said he made with the treasurer of the defendant corporation, purporting to act for the company; and the court there held that where the contract is made in the name of a corporation, by its president, or by any one possessing apparent general executive power, and the contract is in furtherance of the business of the corporation, there is a presumption of authority, but the treasurer of a corporation is an agent with special powers merely, and cannot bind such corporation by the performance of acts without the scope and ordinary course of the duties of his office.

The judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the' event.

Present: Hascall and O’Dwyer, JJ.

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