Whitman v. Koted Silk Underwear Co. , 78 N.Y.S. 880 ( 1902 )

Conlan, J.

The action was brought to recover services on two causes of action. The answer of the defendant was in effect a general denial. The defendant is a domestic corporation, and one Halstead was its treasurer and manager, and was present in charge of its office and business affairs, and with him all of the dealings between the parties were had. The services alleged to-have been rendered were in their nature, as it appears, for the-benefit of the corporation, and consisted of counsel and advice, and of efforts to enlist new capital in the business in which the-defendant was engaged, and were such in our opinion as did not. necessarily call for any special authority on the part of H., as its. treasurer and manager, to contract for.

The only witness called on behalf of the defendant was the-person nominally holding the office of. president, but whose name-nowhere appears upon the stationery of the defendant company. He says in regard to the meeting of the company’s directors, that. “ there was a meeting along in about March, 1900, but whether it was in the latter part of February or first part of March I do. not remember. The next meeting I think was along in December.” Certainly not very definite information to be possessed by the president of the defendant of the company’s affairs, when the-services for which the plaintiff seeks to recover were alleged, to have been performed between the 1st day of May and the 20th day of July of that year. This witness also says that he personally objected to the form of stationery used by H., but the directors did not take any action upon it. He also swears that H. was in charge of the company, and was its treasurer and., general manager, and that the indebtedness of the defendant was large in 1900, and as if to show that he was unable to devote much of his' time to the defendant’s business, he says he was connected with other business and corporations, and named amongst them an officer of the Hartley Company, and director of the Eemington Arms Company, and treasurer of the Humphreys Chemical Company, and had charge of all interests of the Marcelles Hartley Company, and that these affairs required aU of his time, so that it would appear from the defendant’s evidence, as well as that of the plaintiff, that H. was in control of the defendant by the consent of and with the full authority of its officers and directors. We do not think, under all the circumstances of the case, that any burden was imposed upon the plaintiff to inquire if any special authority was required by H. to act for the company in making the contract in question. It cannot reasonably be denied that all the services contracted for were for the benefit of the defendant, and it is not anywhere denied that they were rendered. But, independent of all this, the question of employment, and of authority of H. to employ the plaintiff was submitted to the jury in a charge which was in aU respects fair to the defendant, and no exception was taken thereto, and the jury appear to have determined the same in the plaintiff’s favor.

Upon the motion for a new trial, after the verdict, counsel was afforded an opportunity, both for oral argument and the submission of authorities, and the result appears to have been adverse to the defendant’s contention.

We are unable to find anything in the record which calls for an interference with the result reached below, and the judgment and order appealed from should be affirmed, with costs.

Seabtjby, J., concurs.

Judgment and order affirmed, with costs.