Nebenzahl v. Fargo — 23 N.Y. St. Rep. 65

Majority

p. 65

Isaac Nebenzahl, Resp’t, v. James C. Fargo, as President, etc., App’lt.^[1]

(New York Common Pleas, General Term,

Filed April 1, 1889.)

Headnote

Appeal—When leave to appeal to court of appeals denied. The fact that a man is behind the counter in a store, apparently doing the work of a clerk in the regular course of business, is not evidence that

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that man is in the employ of the owner of the store, and it is not necessary to allow an appeal to the court of appeals for the purpose of obtaining the-views of that court upon this subject.

Motion for leave to appeal to the court of appeals.

Action for damages for loss of a certain package of goods delivered by the plaintiff to the American Express Company, at the city of New York, addressed to Mrs. C. P. Frankel, Saugerties, N. Y., for carriage and delivery as addressed. The testimony of Mrs. F. is that she never ordered the goods, never received them or knew of their delivery, and that she never gave authority to any person to order or receive them for her. The testimony of the driver, who had been in the employ of the company four days, and who had never previously been in the express business, was that he tendered the package to Mrs. F. and she refused to accept it, and that he afterwards took it to her store and gave it to a man there, who he afterwards learned was Warschauwsky-, and that he received and paid the ex-pressage and signed for it in his own name. He did not inquire for her authority nor ask for Mrs. F. The delivery was made in the day-time and the package was a large one. The door between the store and the building back of it was open, in which the F.’s lived, and there weje some ladies in there who could see into the store.

Hamilton Cole (H. F. Hueson, of counsel), for app’lt; Kleibrisch & Marks (M. S. Marks, of counsel), for resp’t.

It is not necessary to allow an appeal to the court of appeals for the purpose of obtaining the views of that court, as to whether the fact that a man is behind the counter in a store, apparently doing the work of a clerk in the regular course of business, is not evidence that that man is in the employ of the owner of the store. Thei e can be no doubt as to the opinion of the court of appeals on that subject. Leslie v. Knickerbocker Ins. Co., 63 N. Y., 27 ; Svensen v. Pacific M. S. S. Co., 67 id., 108 .

The district court, and the former general teim of this court, were of the opinion that the inference to be drawn from the presence of Warschauwsky behind the counter of Mrs. Frankel’s store (which for aught that appears to the-contrary was without the knowledge or consent of Mrs. Frankel, and merely a momentary and accidental occurrence) was not sufficient to overthrow Mrs. Frankel’s denial that she ever purchased the goods, or that she ever gave to anyone authority to receive them. It was also proved that-Mrs. Frankel refused to take the goods when they were tendered to her, and that Warschauwsky signed the receipt to the express company in his own name, and not in the name of Mrs. Frankel, showing that he did not profess to-

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act as her agent. It was not that no force or consideration was given to the presumption arising from the presence of Warschauwsky behind the counter of Mrs. Frankel’s store, but for the reason that the presumption was rebutted and overcome, that judgment against the express company was given.

Leave to go to court of appeals denied.