Perkins v. Stebbins

29 Barb. 523, 1859 N.Y. App. Div. LEXIS 192

Opinion

By the Court, Balcom, J.

The judgment of the justice cannot be sustained, unless the plaintiff established his cause of action by legal evidence, although the defendant was not present at the trial. (13 Wend. 85. 14 id. 159. 1 Denio, 432. 4 id. 184, 460.) Evidence that Franklin Stebbins was reputed to be the defendant’s agent, was clearly incompetent. The witness did not state what kind of business, if any, outside of the matter in controversy in this action, Eranklin had done as agent of the defendant; and when he said he knew Eranklin was agent of the defendant, he merely stated a conclusion, which may have been drawn from what third persons had said, or from what Eranklin himself had said and done. The evidence was clearly insufficient to show that Eranklin-. had authority to borrow money as agent of the defendant. The justice erred in giving judgment against the defendant for the money, oats and dinner Franklin had of the plaintiff. It is therefore unnecessary to determine any other question in the case. The judgment of the county court, and also that of the justice, must be reversed, with costs.

[Otsego General Term, July 5, 1859.

Mason, Balcom and Campbell, Justices.]

Decision accordingly.