Defendant claimed that it was not same corporate name. Plaintiff tesliable, it not having been organized tified that he had no knowledge of until August 26,1 63, several months the new organization, or of any other after the assignment was made. The than the one into whose service he proof showed that in 1862 plaintiff entered. An accounting was ordered entered the service of a company before a referee, who found due styling itself the American Spiral plaintiff $1,049.41, and judgment Spring Butt Hinge Manufacturing was entered for that amount, with Company, which had its factory in costs. Jersey City and its office in New Elihu Root, for applt. York, and he afterwards became its Lewis Sanders, for respt. foreman. That, while foreman, he Held, no error; that whether the invented his improvement, and ap- organization of the company, in Auplied for a patent therefor. The gust, 1863, was the first corporate officers of the company entered into organization, or are organization of negotiations with him for the pur- a forwer company, was immaterial ; chase of his invention, which cul- that the company then organized, minated in an assignment, under having adopted and acted under the seal, executed by him January 17, agreement under which the assign1863, reciting the facts, and, in con- ment was madle, and having enjoyed sideration of one dollar, assigning its benefits, made it its own as effecto said company said invention, and tnally as if it had formally and by authorizing the issuing of letters resolution adopted and ratified its patent to it. Plaintiff testified that terms, and was bound by it. he executed this assignment in con- The Referee allowed double pay sideration of an agreement made at for double hinges. the time with the officers of said Held, no error. company to pay bim one cent for

Judgment of General Term,

afeach hinge manufactured as long as firming judgment for plaintiff, afthe patent should run. The a-sign-firmed. ment was recorded in the Patent

Opinion by Rapallo, J. All concur. Office, and a patent issued to said company as plaintiff's assignee, Dec. 8, 1863. The company manufactured

AGENCY. DAMAGES. the hinge under the patent, and paid N. Y. COURT OF APPEALS. plaintiff one cent per hinge until March, 1864, when he left their em

Harrington et al., respts., v. Clark, ploy. Defendant put in evidence a

applt. certificate of incorporation filed in Decided Sept. 21, 1880. the Westchester County Clerk's One P., who acted to some extent as defendoffice, August 26, 1863. No docu

ant's agent in the purchase of hops, purmentary evidence was put in of any

chased hops of plaintiffs, but did not menformer organization. It simply ap

tion for whom he was buying. He gave his

check for $110, on account, which was paid peared that the same parties were

by the bank it was drawn on, and defendant previously doing business under the

afterwards took up the check. Plaintiffs

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witnesses testified that defendant had repu- P. contracted for the hops, testified diated contracts made by P., but afterwards that he understood from the general accepted the goods at the contract price, deducting what P. had paid; that he had conversation that P. was buying for stated to one witness that P. was buying for defendant, but he could not specify him; that defendant attended at the depot anything said by him upon that subwith P., and received, examined, and paid ject, and he testified that P. did not for hops purchased by P. Defendant testi

mention for whom he was buying. fied that P. was only authorized to buy such hops as he ordered him to buy; that he did One witness, a hop-grower in Lewis not authorize him to buy plaintiffs' hops; Couvty, testified that he saw dethat he repudiated the purchase as soon as fendant there in September, 1876, he knew of it; that he paid the check at P.'s

and he told him P. was going to request, and on his credit, and that he assisted P. in buying and receiving hops

. buy hops for him, and he wished Held, That plaintiffs could not claiın to have him, when ready to sell, to give P. been misled by appearances, 'so as to bind a chance. Another hop-grower tesdefendant by an apparent agency; that the tified that, in September, 1876, P. evidence, though meagre, could not be said to be insufficient for submission to the jury, contracted for the purchase of bis and a verdict having been rendered for hops for defendant, and paid $200 plaintiffs, P.'s agency must be taken as es- down; and that, when he came to tablished.

deliver the hops, defendant repudiPlaintiff was allowed to answer the question, What did P. say in relation to the party he

ated P.'s agency, but finally took was to buy for ?" Held, no error; as the the hops at the contract price, dejudge could not say as matter of law that ducting the $200 paid by P. The there was no agency.

railroad station keeper at Lowville Plaintiffs have a right to determine the amount

testified that, in the fall of 1876, of their damages by a sale, and it is immaterial what the general market price was at several lots of hops were delivered any time before or on the day of the sale, at that station, said to have been except on the question of good faith and purchased by P. for defendant; that reasonable diligence, if they are questioned. P. and defendant were there toThis was

an action to recover gether to receive them, and that dedamages for refusiug to take and fendant examined, received, and pay for a quantity of hops, which paid for them. Plaintiffs also plaintiffs claimed they sold defend- proved that when P. bought their ant in the fall of 1876, through one hops he gave them his check for P., who acted as his agent. It ap- $100, which was paid by the bank peared that plaintiffs were hop- it was drawn on, although P. bad growers near Lowville, in Lewis no funds there; that afterwards the County, and that defendant was a cashier of the bank requested dehop dealer residing at Fort Plain. fendant to pay the amount of the P. resided in Lewis County, and it check, and he did so and took up was undisputed that he acted to the check. Some time after the some extent as defendant's agent in sale plaintiffs learned from P. that the fall of 1876, in the purchase of defendant refused to receive the hops in that county, but the nature hops, and they wrote to him, inand extent of the agency was not forming him of the contract with shown. Plaintiff H., with whom P. and their readiness to deliver the hops. Defendant replied deny- bind him; that although the eviing Pr's agency to buy the hops, dence was meagre and unsatisfacbut admitting his agency to buy tory, it cannot be said that it was such as he directed him to buy. insufficient for submission to the Defendant, as a witness on his own jury, and a verdict having been renbehalf, testified that P. was not au- dered for plaintiffs, P.'s agency thorized to buy plaintiffs' hops ; must be taken as established. that he did not know of their pur- When plaiutiff H., was on the chase outil two or three days after, stand as a witness for plaintiff, when he repudiated it; that he had testifying to the contract with P., arranged with P. to buy only such he was asked: “What did he, P., hops as he ordered him to buy, and say in relation to the party he was that he specified the particular luts; to buy for ?" Defendant's counsel that P. had no authority to buy for objected to this as inadmissible, on him, except by express direction; the ground that plaintiffs could not that he had paid the $100 check at prove the declarations of the agent P.'s request and upon his credit, at until the agency had been proved. the time repudiating his agency. The evidence was received, subject On cross-examination he admitted to a motion to strike it out. that his son and P. bought hops for After plaintiffs had given all their him in Lewis County in 1874; that evidence on the subject of the in 1876 P. bought of two different agency, defendant's counsel moved parties, and that when they were to strike out all of H.'s testimony delivered and offered to him he re- as to the declarations of P., on the pudiated the contracts made by P., ground that no agency bad been but took the hops, deductivg the shown. This motion was denied. amounts paid by P. at the time of Held, no error, as H. testified making the contracts. He also tes- that P. did not say who he was buytified that P. went with him and ing for; and, if he had, the judge saw many hop.growers in Lewis could not say, as matter of law, that County, and that he assisted him in there was no agency ; it was a quesbuying and receiving hops.

tion for the jury. A verdict was rendered for plain- Also hell, That plaintiffs had the tiffs.

right to determine the amount of Amos H. Prescott, for applt.

their damages by a sale of the hops,

and it was immaterial what the genLeon Talcott, for respts.

any time Held, That upon the facts proved before the hops were sold, or even plaintiffs cannot claim that they what it was on the day of the sale, were misled by appearances, and except upon the question of good that defendant should be bound by faith and reasonable diligence, if an apparent agency. It was incum- they were questioned. 30 N. Y., bent upon them to establish by suf- 549; 10 Bosw., 130; 44 N. Y., 72; ficient evidence that P. had actual 9 B. Monroe, 69; 21 Wis., 562. authority as defendant's agent to Judgment of General Term, affor respt.

eral market price was at

firming judgment on verdict for prevailing opinion that the refusal plaintiffs, affirmed.

to confirm the report of the commisOpinion by Earl, J. All concur. sioners was because the General

Term deemed it, as a matter of fact, improper, inexpedient and impolitic

to do otherwise. APPEAL.

Henry J. Scudder and John K. N. Y. COURT OF APPEALS.

Porter, for applt. In re application of the Kings Wm. C. De Witt and B. F. Tracy, Co. Elevated RR. Co. Decided Sept 21, 1880.

Held, That the appeal should be

dismissed; that the General Term An order of General Term refusing to confirm in making the order appealed from

the report of commissioners appointed to de terimine whether a railroad shall be built exercised a judicial discretion vested upon a specified route is not reviewable in in it by law, and the order as one the Court of Appeals.

resting in discretion was not reviewSee S. C., 9 W. Dig., 290.

able in this court. 2 Hill, 14, 27; This was an appeal from an order 61 N. Y., 60; 11 id., 276; 12 id. of the General Term, denying an 413; 7 Elill, 9, 19, 20; 27 N. Y., application to confirm the report of 629. A determination of commiscommissioners appointed by the sioners has no effect until it has court pursuant to chapter 606 of the been passed upon and confirmed by Laws of 1875, to determine whether the General Term. Although the a steam railway should be built in proceeding to confirm the determinathe City of Brooklyn upon the tion of the commissioners is in the routes fixed by commissioners ap- nature of an appeal, so that the pointed by the mayor of that city General Term lias not a mere formal according to the act. Section 3 of function only, it cannot be said Article 18 of the Constitution pro- that the tribunal that has the power vides that no street railroad shall be to appoint commissioners, whose authorized by law without the con- duty it is to report to it, and which sent of a fixed proportion of adjacent report is of no effect until confirmed property owners, or, if that consent by that court, is not a tribunal of could not be obtained, without the original jurisdiction, so far as to determination of commissioners ap- bave the function to review the pointed by the General Term of the action and conclusion of its comSupreme Court of the district that missioners in all the particulars such railroad ought to be construct-tbat enter therein. ed, and a confirmation of that de- Appeal dismissed. termination by the court. The order Opinion by Folger, Ch. J. All of the General Term did not state concur. whether the ground upon which it was made was of law or fact.

It appeared from the case and the


dant was the order and the failure

of Riker to pay in accordance with N. Y. COURT OF APPEALS.

it. Defendant offered to prove the Thomson, rec'r, respt., v. Mc- receipts and payments of Riker from Gregor, applt.

and after the date of tha bond, and

sought to investigate the accounts Decided Sept. 21, 1880.

so as to show that no liability had Defendant was surety upon the bond of a re- accrued since such date.

These ceiver given after he had entered upon his offers were rejected. duties. The condition of the bond was that

Andrew Gilhooley, for respt. the receiver should “ henceforthfaithfully discharge bis duties. On an accounting by Wm. M. Northrop, for applt. the receiver to which defendant was not a

Held, error; that the order of party, an order was made requiring the receiver to pay a certain sum with interest to

the Common Pleas was not concluhis successor. In an action on the bond, sive upon defendant; that the deHeld, that the order was not conclusive on fendant covenanted to be responsidefendant; that he could not be held liable ble for the future and he could not for the action of his principal before the bond

be held liable for the past, as to was given, and that he had a right to be

66 beard as to the amount the receiver justly which he had not covenanted. owed and was bound to pay.

N. Y., 60; 9 Cranch 212; 5 Pet., 372.

This ciuse does not come within This was an action against de- the authorities which hold, that one fendaut as a surety upon the bond of a receiver. It appeared that the not a party or privy to a judgment receiver was appointed July 9,1874, may be bound by it if he has ex

He could and on that day entered upon the pressly so covenanted.

pot be held liable unless the lanperformance of the duties of his

guage of his bond expressly and extrust. On January 20, 1875, he was to the judgment, and shows that be

plicitly contemplates a submission directed to file a bond, and ten days must have intended to be bound by later the bond was executed by de- it. 75 N. Y., 565. fendant as surety. The condition of

That if the order was not binding the bond was, "if the said Charles B. Riker shall henceforth faithfully it became merely evidence, which

as an adjudication upon defendant, discharge the duties of his trust.”

may be rebutted. Defendant bad a On December 28, 1877, an order rigħt to be heard as to the amount was made by the New York Com- the receiver justly, owed and was mon Pleas, at the close of the ac- bound to pay. counting of Riker as receiver, re

Judgment of General Term, quiring him to pay over to his

affirming judgment on verdict for successor, plaintiff, $2,099.27, with

plaintiff, reversed and new trial interest, as the balance in his hands.

granted. Defendant was not a party to the

Opinion by Finch, J. All concur. accounting, and had no knowledge that it was pending.

The only evidence against defen

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