Cornelius v. Reiser — 33 N.Y. St. Rep. 424

Majority

p. 424

Jennie Cornelius, Resp’t, v. Jacob Reiser, App’lt.

(City Court of New York,

General Term,

Filed October 6, 1890.)

Headnote

Services—Charge.

In an action for services performed under an alleged employment by an agent of defendant, where such agency was denied, the court charged that if plaintiff performed the work she was entitled to recover, and that if defendant used the articles washed by plaintiff he was liable. Held, error.

Appeal from judgment entered on verdict in favor of plaintiff.

Johnston & Johnston, for app’lt; E. F. Stern, for resp’t.

The plaintiff sought to recover for washing towels for the defendant. It was not claimed that the plaintiff made any contract with the defendant personally, but'it was insisted that the husband of the plaintiff, an employe of the defendant, was his agent, and that, acting under his agency, he employed the plaintiff. The defendant denied the authority asserted, and its existence was the main contention in the case. Instead of submitting this question to the jury the trial judge told them in substance (1) that if the plaintiff did the washing she was entitled to recover, and (2) that if the defendant used the towels washed by the plaintiff the defendant was liable. The defendant excepted to the charge in both respects.

The trial judge erred, first, in not malting the authority of the alleged agent the ground of liability, and, next, in charging that the use of the towels made the defendant liable. If the trial judge had instructed the jury that if the defendant used the towels, knowing that the plaintiff had washed them under an employment of one assuming to act as his agent, he might have ratified the employment and become liable, the second portion of the charge might have been justified. But the trial judge made no qualification, and, under the brief instructions given, the jury found for the plaintiff.

For these errors the judgmant must be reversed and a new trial ordered, with costs to the appellant to abide the event.

McAdam, Ch. J., and Ehrlich, J., concur.