Prior v. Flagler

10 Misc. 496, 31 N.Y.S. 193, 63 N.Y. St. Rep. 622

• Court: City of New York Municipal Court
• Decided: December 15, 1894
• Status: Published

Opinion

Conlan, J.

The only question presented on this appeal is whether Tomlinson had authority to make the contract sued on. The plaintiff was employed as chief cook in defendant’s hotel for the season of 1892-1893.

The evidence shows that plaintiff’s employment originated with a Mr. Seavey, who was general manager of the hotel, and concluded as to details with one Tomlinson, who was acting in the capacity of steward.

The evidence shows that shortly after plaintiff’s employment he was injured so badly that he was unable to continue his duties as chief cook and was taken to a hospital, when, as plaintiff claims, an agreement was made with the steward Tomlinson that if plaintiff would resign this position the balance of his salary for the season would be paid him. This was an entirely new and independent contract, and to be binding on the defendant must be made by some person having authority to make it.

We do not think that authority in Tomlinson was shown, and it follows, therefore, that the evidence as to the terms of the agreement was properly excluded.

At the close of the plaintiff’s case the court offered to submit the questions of fact to the jury, which was declined by plaintiff’s counsel.

No errors of law appear in the case, and the complaint was properly dismissed.

Judgment affirmed, with costs.

Van Wyck, J., concurs.