Katz v. Haffen — 58 N.Y. St. Rep. 53

Majority

p. 53

Bernard Katz et al., Resp’ts, v. John Haffen et al., App’lts.

(New York Common Pleas, General Term,

Filed March 14, 1894.)

Headnote

Principal and agent—Liability.

Where the arrangement between the defendants and a third party was, in substance, to allow the latter for his compensation what he could earn above the expense of running the store and a nominal rent, he is the agent of defendants and his transactions bind them.

Appeal from a judgment of the justice of the first district court in favor of plaintiff for $247.82 damages and costs. The action was for the value of ale and porter sold and delivered at the retail liquor store 207 West street, and corner of Canal and Sullivan streets, in this city, between March 31st, and June 1st, 1892.

Wm. F. Browne, for app’lts; F. Fider, for resp’ts.

The complaint alleges a sale to defendants and the answer denies it The transactions were between plaintiffs and one Mark Mayer, who was at the time ostensibly proprietor of the stores, but there was evidence that he was but the agent of defendant to conduct the business for them. They were brewers and engaged in the business of brewing and selling lagerbeer, and the plaintiff’s evidence showed that they put Mayer in charge to run the stores, requiring him to turn over to them weekly all the receipts above the expenses and $15 a week for his wages; and that after the delivery of these goods they promised to pay for them and instructed Mayer to do so; that they admitted the ownership of the stores and that they had Mayer in charge of them; that they instructed Mayer to buy goods in his own name; and that when they saw fit they transferred him from one store to the other, and finally dismissed him. The evidence in defendant’s behalf showed an arrangement for a nominal rental to be paid by Mayer, but it was contingent upon his taking in sufficient money for that and the running expenses, and the whole case warrants the inference that this was but an arrangement to allow Mayer for his compensation what he could earn above the expense of running the place and the nominal rental.

The judgment must be affirmed.