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Kind v. Barry

121 N.Y.S. 324 Court N.Y. App. Term Decision date 1910-02-24 English

Delivered by WHITNEY, J.

Contents

Majority

p. 324
(66 Misc. Rep. 188.)
KIND v. BARRY.
(Supreme Court, Appellate Term.
February 24, 1910.)

Headnote

Principal and Agent (§ 92[1] )—Power oe Agent—Joint Power.
The authority under a power of attorney given by the grantor to several persons named as his attorney in fact is presumptively a joint one, and in the absence of anything to the contrary one of the attorneys may not make a binding contract.
[Ed. Note.—For Other cases, see Principal and Agent, Cent. Dig. § 251; Dec. Dig. § 92.[1] ]
Appeal from Municipal Court, Borough of Manhattan, Eighth District.
Action by Jennie Kind against John T. Barry. From a judgment for plaintiff, after a trial by the court without a jury, defendant appeals.
Reversed, and new trial ordered.
Argued before SEABURY, GUY, and WHITNEY, JJ.
Ellison, McIntyre & Davis (Arnold L. Davis, of counsel), for appellant.
Menken Bros. (Mortimer M. Menken and Howard T. Cole, of counsel), for respondent. ■

Defendant and others gave a power of attorney to-three persons named as his attorneys in fact. Plaintiff has recovered judgment against him upon a contract made by one only of the three.

Presumptively such an authority was a joint one (Story on Agency, § 42; Mechem on Agency, § 77, and cases cited; Hawley v. Keeler, 53 N. Y. 114 , 121), and there is nothing in the power of attorney to indicate the contrary, but much that is confirmatory. Eor this reason, as well as that stated in Kind v. Cortis (decided herewith) 121 N. Y. Supp. 323 , the judgment should be reversed, and a new trial ordered.

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

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