Deller v. Staten Island Athletic Club — 22 N.Y. St. Rep. 62

Majority

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George H. Deller, App’lt, v. Staten Island Athletic Club, Resp’t.

(Supreme Court, General Term, Second Department,

Filed February 11, 1889.)

Headnote

T. Contract—Principal and agent—When act of agent binds principal.

Where under an agreement between the plaintiff and defendant the plaintiff was hound to furnish meals to defendant at the request of the

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house committee. The orders were given by one Ferris, a member of the house committee. The defendant claimed that Ferris had no authority to bind the club. Held, that the object of the agreement was to make the house committee agents of the club in respect to the matters therein, contained, and that a verdict ought to have been directed for plaintiff.

2. Practice—Counterclaim—Must be sustained by proof.

It is error to direct a judgment upon a counterclaim where there is no-proof offered in support of the same, and no admisfion that the same is due.

Appeal from a judgment of the Richmond county court,, dismissing the plaintiff’s complaint.

There was an agreement existing by which the plaintiff rented the club house of the defendant and under which he was to keep and maintain a cafe and restaurant for the-exclusive use of the members of the club and their guests, to-be open at such times as the house committee of said club should designate. The testimony of the plaintiff was that-he furnished meals to the club at the request of Mr. Ferris and Mr. Jansen, members of the house committee. In opening the case, plaintiff’s counsel stated that the amount claimed was less than plaintiffs original claim by the amount. of a counterclaim, which was not disputed by plaintiff.

W. J. Powers, for app’lt; George M. Mackellar, for resp’t..

—Under the agreement between plaintiff and defendant, the plaintiff was bound to furnish meals, etc., ta-defendant at the request of the house committee.

He did furnish meals under such request and was told to-charge to the club, and this suit is brought to collect the amount.

It is difficult to see how any more plain and definite proof could be adduced to make out the claim. It appears all through the case that Ferris was acting for and was the-agent of the defendant. He and Mr. Jansen were on the-house committee and gave the orders. The meals were furnished to guests of the club. The object of the agreement was to make the house committee agents of the club in managing such matters, and a verdict ought to have been directed for the plaintiff.

Again, it was error to direct a judgment upon the counterclaim, there being no proof offered in support of the same and no admission that the same was due. Plaintiff gave credit for the amount of the counterclaim when he opened his case and only claimed for the balance.

The defendant makes the point that there is nothing in the agreement for giving credit upon orders given by the house committee. It is plain that the house committee had, under the agreement, the charge of such matters, and had. power to bind the club.

It was utterly impracticable to demand pay in advance, for the plaintiff could not tell what the bills would be until after the meals, wines, etc., had been furnished. It is also, evident from all the facts that just such powers were to be-

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vested in the house committee, as it would be impracticable to manage a club in any other manner. If there was any restriction upon the house committee why were not the bylaws and constitution of the club produced to show it. We -cannot assume that the affairs of the club were so managed that before refreshments could be furnished for its guests, it was necessary to call a meeting of the directors to authorize the house committee to order the same.

It is evident the plaintiff furnished the meals, etc., in good faith, upon orders duly given, and that the defendant has had the benefit thereof.

The proof was sufficient to establish the fact that the house committee were the agents of the club, and that the ■orders upon which the claim arose were binding- upon it.

Judgment reversed, with costs.

All concur.