Happy v. Mosher , 1866 N.Y. App. Div. LEXIS 155 ( 1866 )

By the Court, Ingalls, J.

The defendant, Mosher, employed one J ames Caler to construct the barge in question, and in March, 1866, one Lewis Minnerly, who was in the employ of said Caler as his foreman, contracted with the plaintiff on behalf of said Caler and by his authority, for a quantity of chestnut lumber. The evidence Was sufficient to justify the jury in finding that the lumber when delivered was used in the construction of the barge in question. Certainly there was sufficient to justify a submission of that question to the determination of the jury, and their finding ■ must be regarded conclusive. No error was committed in admitting ' as evidence the declarations of Minnerly to the plaintiff, as to who he purchased the lumber for, and in regard to the amount thereof, which was used in building the barge. The evidence shows that Minnerly was the agent of Caler in making the purchase, and was directed by him to settle with the plaintiff' in respect to the lumber furnished. And the declarations of Minnerly were made while transacting such business, and •while acting within the scope of such agency, and were properly-received as a part of the. res gestae. (Thallhimer v. Brinckerhoff, 6 Cowen, 99. Van Rensselaer v. Morris, 1 Paige, 15. Brehm v. The G. W. Railway Co., 34 Barb. 275. Fox v. Parker, 44 id. 542, 547.)

[Albany General Term, December 3, 1866.

Caler is to be regarded as the owner of the barge, so far as the lien of the plaintiff for the lumber furnished by him is concerned. And the acts and declarations of Caler in regard thereto are binding. (Andrews v. Durant, 11N. Y. Rep. 35. Low v. Austin, 20 id. 181.)

The attachment proceedings were admitted without objection, and it is too late upon appeal to question their regularity or sufficiency; Proper objections must be taken upon the trial to justify a review in this court. (Mabbett v. White, 12 N. Y. Rep. 451. Elwood v. Deifendorf, 5 Barb. 406. Norman v. Wells, 17 Wend. 142.)

The execution of the note by Caler, under the circumstances, did not have the effect to discharge the lien upon the barge, as the jury were justified in finding from the evidence that it was not accepted by the plaintiff. (Noel v. Murray, 13 N. Y. Rep. 167. Hill v. Beebe, id. 557. In the case of the Brig Nestor, 1 Sumner, 73.)

The charge of the learned justice was in accordance with the foregoing views, and if they are correct, it follows that no material error was committed prejudicial to the rights of the defendants. The judgment must be affirmed, with costs.

Miller, Ingalls and Hogeboom, Justices.]