Hyperlawhypertext legal database Live Poultry Auction Co. v. Kastein 155 N.Y.S. 353

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Live Poultry Auction Co. v. Kastein

155 N.Y.S. 353 Court Argued October term, 1915, before BIJUR, PAGE, and SHEARN, JJ. Decision date 1915-11-03 English

Delivered by PAGE, J.

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p. 353
LIVE POULTRY AUCTION CO., Inc., v. KASTEIN.
(Supreme Court, Appellate Term, First Department.
November 3, 1915.)

Headnote

Principal and Agent ©=»24—Evidence of Agency—Question fob Juby.
In an action for the price of goods, bought at auction by defendant’s son and delivered at defendant’s place of business, evidence held sufficient to go to the jury on the issue of the son's agency.
[Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. §§ 722, 723 ; Dec. Dig. <§=24.]
<g^>For other cases seo same'topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
Appeal from Municipal Court, Borough of Manhattan, Third District.
Action by the Live Poultry Auction Company, Incorporated, against Max Kastein. Judgment for defendant on dismissal of the complaint at the close of plaintiff’s case, and plaintiff appeals. Reversed.
Argued October term, 1915, before BIJUR, PAGE, and SHEARN, JJ.
Theodore T. Baylor, of New York City, for appellant.
Cohen Bros., of New York City (Lawrence B. Cohen and Joseph W. Umans, both of New York City, of counsel), for respondent.

The action was to recover the purchase price of goods sold and delivered. The sale of the goods and their delivery at the place where defendant had carried on business for a number of years was admitted. It does not appear from the evidence that he was not conducting business at that place during all the period of the transactions in suit.

The sole question litigated was that of liability. It was proved that the defendant’s son Eli purchased the goods at auction, that they were billed to the defendant, and paid by checks signed in the defendant’s name by Eli, who was duly authorized. Although considerable competent evidence was erroneously excluded at the trial, sufficient evidence of the course of dealing and ratification of Eli’s purchase from the plaintiff to establish prima facie Eli’s agency, and the consequent liability of the defendant to. the plaintiff, was adduced.

The judgment will be reversed, and a new trial granted, with $30 costs to the appellant to abide the event. All concur.