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Whalen v. Ruegamer

108 N.Y.S. 38 Court N.Y. App. Div. Decision date 1908-01-10 English

Delivered by HOOKER, J.

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p. 38
WHALEN v. RUEGAMER.
(Supreme Court, Appellate Division, Second Department.
January 10, 1908.)

Headnote

Master and Servant—Employment op Servant.
Where an employment was shown by a writing signed by the employer, followed by the word “trustee,” but the émployé did not know whom the-employer represented, the employer was personally liable.
Appeal from Municipal Court, Borough- of Manhattan, Fifth District.
Action by Richard Whalen against Andrew Ruegamer, Jr. From a judgment for defendant, plaintiff appeals. Reversed, and new trial ordered.
Argued before WOODWARD, JENKS, HOOKER, MIEEER, and GAYNOR, JJ.
Edward M. Grout, for appellant.
A. P. Bachman, for respondent.

It was conceded upon the trial that the plaintiff had performed the services claimed by him to have been rendered to the defendant and that they were worth the amount claimed. Plaintiff’s employment was shown by a postal card sent by the defendant to the plaintiff, reading as follows:

“Dear Sir: Will yóu do me a favor and remove dirt in front of 4 story Buildings on 51 St bet 3 and 4 Ave at once and sent Bill to me. Mr. Bauer of Myrtle Ave & Broadway recommended you. Your attention will oblige.
“Yours truly, Andrew Ruegamer, Jr., Trustee.”

The defense is that the defendant was acting as trustee for creditors, and hence not liable, because he was a mere agent; but it is undisputed that the plaintiff was not advised and did not know whom the defendant represented. Under the evidence as it stands the plaintiff was entitled to recover. Argersinger et al. v. MacNaughton, 114 N. Y. 535 , 21 N. E. 1022 , 11 Am. St. Rep. 687 .

The judgment should be reversed, and a new trial ordered.

Judgment of the Municipal Court reversed, and new trial ordered; costs to abide the event. All concur.

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