Eliott v. Barell

232 A.D. 182, 249 N.Y.S. 580

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 1, 1931
• Status: Published

Opinion

McAvoy, J.

We think that the issue of ratification with knowledge of Weinberg as to Bareli’s order of the securities was not presented to the jury by the court’s charge relating to what constitutes an estoppel. An agent’s conduct of a negotiation may be ratified without an estoppel existing against the principal, and this phase of the parties’ dealings was not explained to the jurors although such explanation was requested by defendant. We think this vitally affected the result and that the error necessitates a retrial.

On the appeal in the first case, the judgment and orders appealed from should be reversed, without costs, and a new trial ordered. On the appeal in the second case, the judgment and order should be reversed and a new trial ordered, with costs to appellants to abide the event.

Finch, P. J., and Townley, J., concur; Merrell and Martin, JJ., dissent and vote for affirmance.

In first case: Judgment and orders reversed, without costs, and a new trial ordered.

In second case: Judgment and order reversed and a new trial ordered, with costs to the appellants to abide the event.