Charles v. Leonard — 151 N.Y.S. 1108

Majority

p. 1108

CHARLES, Respondent, v. LEONARD, Appellant.

(Supreme Court, Appellate Division, Second Department.

February 5, 1915.)

Headnote

Action by Adelaide W. Charles, as sole executrix, etc., of Archibald Charles, deceased, against Elizabeth D. Leonard, as sole executrix, etc., of George B. Leonard, deceased.

The jury was justified in finding that Charles was not authorized by defendant to make the contract. The letter written by Charles to Leonard on March 24th is sufficient evidence that Charles did not have the

p. 1109

authority, but was seeking it, and nothing remains to show authority to make the particular contract except the testimony of Thompson to the telephonic communication with Leonard on March 25th, prompted thereto by Charles, who was present, which, in connection with Charles’ letter of March 24th to Leonard, tends to show that Charles had been unable to persuade Leonard, and sought Thompson’s interposition. Thompson’s testimony does not outweigh the evidence against it. Order reversed, and verdict reinstated, and judgment entered thereon, with costs, besides costs of this appeal. See, also, 163 App. Div. 967 , 148 N. Y. Supp. 1109 .