American Box Machine Co. v. Bolnick

Appellate Terms of the Supreme Court of New York

American Box Machine Co. v. Bolnick

36 Misc. 765, 74 N.Y.S. 846

CourtAppellate Terms of the Supreme Court of New York

DecidedOctober 15, 1901

StatusPublished

This text of 36 Misc. 765 (American Box Machine Co. v. Bolnick) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

American Box Machine Co. v. Bolnick, 36 Misc. 765, 74 N.Y.S. 846 (N.Y. Ct. App. 1901).

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Opinion

Freedman, P. J.

It is alleged by the plaintiff in this action that it delivered to the defendant a No. 2 box covering machine, receiving in exchange therefor a No. 0 box covering machine, and a promise to pay the sum of twenty-five dollars, as the agreed difference in value between the two machines, and this action is brought to recover such sum.

The agreement for the exchange of the machines, and the alleged promise to pay the said difference was made by the plaintiff’s agent with one Henry Bolniclc, and the only testimony in the case to connect Esther Bolnick, the defendant, with the transaction, is the testimony of Henry Bolnick to the effect that he was the husband of Esther Bolnick, that Esther Bolnick was the proprietor of the Empire Box Company at the time the exchange of the machines was made, and that in making the exchange of the machines he (Henry) acted as the representative of the Empire Box Company. Hnder the well-known rule that agency cannot be proven by the naked declarations of the alleged agent, this was clearly insufficient to charge the defendant. The defendant’s counsel moved at the close of the plaintiff’s case, and at the close of the whole case for a dismissal of the complaint upon this ground, which motions were denied. The judgment is erroneous, and must be reversed.

McAdam and Gildersleeve, JJ., concur.

Judgment reversed, and new trial ordered, with costs to appellant to abide event.

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Freedman, P. J.

It is alleged by the plaintiff in this action that it delivered to the defendant a No. 2 box covering machine, receiving in exchange therefor a No. 0 box covering machine, and a promise to pay the sum of twenty-five dollars, as the agreed difference in value between the two machines, and this action is brought to recover such sum.

The agreement for the exchange of the machines, and the alleged promise to pay the said difference was made by the plaintiff’s agent with one Henry Bolniclc, and the only testimony in the case to connect Esther Bolnick, the defendant, with the transaction, is the testimony of Henry Bolnick to the effect that he was the husband of Esther Bolnick, that Esther Bolnick was the proprietor of the Empire Box Company at the time the exchange of the machines was made, and that in making the exchange of the machines he (Henry) acted as the representative of the Empire Box Company. Hnder the well-known rule that agency cannot be proven by the naked declarations of the alleged agent, this was clearly insufficient to charge the defendant. The defendant’s counsel moved at the close of the plaintiff’s case, and at the close of the whole case for a dismissal of the complaint upon this ground, which motions were denied. The judgment is erroneous, and must be reversed.

McAdam and Gildersleeve, JJ., concur.

Judgment reversed, and new trial ordered, with costs to appellant to abide event.

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Bluebook (online)

36 Misc. 765, 74 N.Y.S. 846, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-box-machine-co-v-bolnick-nyappterm-1901.