American Encaustic Tiling Co. v. Reich — 35 N.Y. St. Rep. 579

Majority

p. 579

The American Encaustic Tiling Co., Limited, Resp’t, v. Lorenz Reich, App’lt.^[1]

(New York Common Pleas, General Term,

Filed February 2, 1891.)

Headnote

1. Evidence—Agency.

In an action for materials furnished and work, labor and services performed in laying tiles on defendant’s premises, the plaintiff, to show agency in the architect to contract, was allowed to prove that about a. year before the work was done one O. had called on defendant in relation to doing the work and was referred by him to the architect. Held, no error; that if there was a recognition of the architect’s authority it was in relation to the very transaction in dispute.

2. Same—Cross-examination.

It is discretionary with the court whether to receive evidence in favor of defendant when brought out on cross-examination of plaintiff’s witnesses, or to reserve its admission as properly part of defendant’s proof.

3. Same—Experts.

Evidence that the arehitect had had similar work done on other buildings is competent on the question of his capacity as an expert to testify to the value of the work.

Appeal from judgment and order of the general term of the-city court, affirming judgment on verdict.

Action for work, labor and material, in the construction of defendant’s hotel.

Defense, that the architect, by whom plaintiff was employed, had no authority to contract for the work and material, but was-himself to do the work and furnish the material at his own expense, and that defendant had settled with him.

p. 580

The plaintiff, to prove that the said Schellinger was the agent of the defendant, called one Arthur .Curtis, who testified that he was in the employ of Aspinwall Sons, and that about a year before the work in question was done, in behalf of his employers, he called upon the defendant in regard to placing tiling in the Hotel Cambridge, and that the defendant referred him to his architect, Schellinger.

Abram Kling, for app’lt; Charles A. Flammer, for resp’t.

The decisive question in the case, namely, whether the architect employed by defendant to superintend the construction of the building had authority, real or apparent, to make the contract with plaintiff, was strenuously litigated on the trial; and as there is sufficient evidence of authority in the record to carry the case to the jury, their verdict is here conclusive, unless it be vitiated by the alleged errors in the admission and. exclusion of evidence.

Appellants chief exception is to the admission of evidence that, in another and different transaction, defendant recognized the architect as his agent. But to this contention there are two sufficient answers: first, the evidence is merely that “ I was to see the architect,” and so shows no recognition by defendant of the architect’s authority to make the contract in controversy; and, secondly, if there were such recognition, it was of authority in the architect touching the very transaction in dispute. Hence, Duryea v. Vosburgh, 121 N. Y., 57 ; 80 N. Y. State Rep., 683, is not in point, for in that case the attempt was to establish agency in one transaction by proof of agency in another and different transaction. Page 65.

The exception to the exclusion of certain evidence on cross-examination is also invalid, for two reasons : first, the plaintiff was then presenting its case; and even were the offered evidence competent, it was discretionary with the court whether to. receive it at that moment, or to reserve its admission as properly part of defendant’s proof, Neil v. Thorn, 88 N. Y., 270 ; secondly, the substance of the excluded testimony was subsequently brought out by appellant.

Appellant’s other principal exception is as 'untenable as the former ones; for evidence that the witness had tiling work done in other buildings was clearly competent to the purpose for which it was received, namely, his capacity as an expert" to speak to the value of laying tiles. In the remaining exceptions we see no error prejudicial to appellant.

The judgment and order appealed from must be affirmed, with costs.

Allen, Bischoff and Pryor, JJ., concur.