Burby v. Roome — 57 N.Y. St. Rep. 511

Majority

p. 511

Sarah J. Burby, Resp’t, v. William J. Roome, App’lt.

(New York Common Pleas, General Term,

Filed February 5, 1894.)

Headnote

Pbincipal and Agent—Rb-imbubsembnts.

An agent who, in direct disobedience of his principal’s instructions, incurs expenses in repairing the latter’s premises, is not entitled to re-inbursement.

Appeal by defendant from a judgment of the district court in the City of Slew York for the first judicial district, rendered by the justice thereof, without a jury, in favor of the plaintiff.

The nature of the action and the facts, so far as material, are stated in the opinion.

W. Arrowsmith, for app’lt.

Abraham I. Ellens, for resp’t

The plaintiff’s assignor, one Schell, was the owner of certain premises in this city and the defendant Boome was his agent to collect the rents of, and to care for such property. Schell had sent the following letter of instructions to the defendant, who does not deny having received it:

“ Mew York, June 7, 1892.

Mr. Boome, Dear Sir: Concerning my house 131 West 25th Street. I have made arrangements with Mantel, 32 Carmine St. to keép the roof in repair for one year, and with O’Brien & Byder, plumbers, 154 Spring Street, to attend to the plumbing work, tank and engine for one year. * * * In case you need the services of any of these people at any time to do any of the above work, please send for them and they will do the work.

Edward P. Schell.”

In January, 1893, the pipes, water closets, etc., upon the premises were frozen up and the services of a plumber were required. One Young was called in by the defendant’s brother-in-law (who is admitted to have had authority to act for him in the matter) to do the work of repairing. Young’s bill for his services amounted to $119.99, which defendant, after some delay, paid. Upon accounting to Schell for rents received, he retained this amount for

p. 512

the recovery of which this action was brought. The answer was a general denial and set up a counterclaim for said last mentioned sum paid by him to Young for such services. The justice rendered judgment in favor of the plaintiff for the full amount claimed, and the defendant has brought on this appeal.

In speaking of an agent’s right to recover his disbursements, made for the benefit of his principal, Story in his work on Agency (Sec. 336, p. 412, 7th Ed.) says:—“But this liabilty of the plaintiff proceeds upon the ground, that the advances, expenses and disbursements have been properly incurred, and reasonably and in good faith paid, without any default on the part of the agent. * * * However-, if the agent has voluntarily and officiously and without authority made advances or payments, the principal will not be bound to any reimbursement thereof; for it will be imputed to the fault, or negligence or unskillfulness of the agent.’’

As laid down in Fowler v. N. Y. Gold Exchange Bank, ( 67 N. Y. 138 , 145-6) the rule is that “ An agent is entitled to be indemnified against all damages and losses which are incurred by him and all cost to which he may be subjected in the course of his agency, without fault on his part.” See also Monnett v. Heller, 5 N. Y. Supp. 913 ; 25 St. Rep. 609 . Under these rules the agent in the present case is not entitled to recover. Having acted in direct disobedience of his principal’s instructions, he incurred the clearly “ without authority.”

The judgment should be affirmed with costs.

Cases cited

Fowler v. New York Gold Exchange Bank 67 N. Y. 138 N.Y. 1876-10-06 at 145-6 p. 512