Tiernan v. Havens

Appellate Division of the Supreme Court of New York

Tiernan v. Havens

162 A.D. 656, 147 N.Y.S. 786, 1914 N.Y. App. Div. LEXIS 6055

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 15, 1914

StatusPublished

Cited by2 cases

This text of 162 A.D. 656 (Tiernan v. Havens) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Tiernan v. Havens, 162 A.D. 656, 147 N.Y.S. 786, 1914 N.Y. App. Div. LEXIS 6055 (N.Y. Ct. App. 1914).

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Opinion

Per Curiam:

Defendant made and delivered a promissory note in the sum of $500, payable to the order of F. E. Fanning. Fanning indorsed the note “without recourse,” and it came into the possession of the plaintiff. Plaintiff has brought this action on the note, setting forth in his complaint that it came into his possession “ in due course ” and for value. Defendant answered, setting forth that the note was given for a consideration which was never performed, and that plaintiff was not a holder thereof in good faith and in due course. According to the record the defendant gave this note to Fanning for a number of shares of mining stock at five cents a share. He never received the stock, so as between him and Fanning there was a complete failure of consideration. Defendant sought to prove that Fanning in the sale of the stock was but an agent of plaintiff, under an agreement by which plaintiff was to pay Fanning a commission on every share of stock he sold. Evidence to support this defense was excluded by the trial court, and a judgment was directed in favor of plaintiff.

On this appeal the respondent furnishes us with a large number of authorities to show that agency can never be established by declarations of the supposed agent. We do not question this elementary rule, but it has application only to declarations of the supposed agent out of court, and does not apply to the material testimony of the supposed agent in court, on the witness stand.

[658]*658The judgment and order of the County Court of Suffolk county should be reversed and a new .trial ordered, costs to abide the event.

Jenks, P. J., Burr, Thomas, Carr and Rich, JJ., concurred.

Judgment and order of the County Court of Suffolk county reversed and new trial ordered, costs to abide the event.

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Per Curiam:

Defendant made and delivered a promissory note in the sum of $500, payable to the order of F. E. Fanning. Fanning indorsed the note “without recourse,” and it came into the possession of the plaintiff. Plaintiff has brought this action on the note, setting forth in his complaint that it came into his possession “ in due course ” and for value. Defendant answered, setting forth that the note was given for a consideration which was never performed, and that plaintiff was not a holder thereof in good faith and in due course. According to the record the defendant gave this note to Fanning for a number of shares of mining stock at five cents a share. He never received the stock, so as between him and Fanning there was a complete failure of consideration. Defendant sought to prove that Fanning in the sale of the stock was but an agent of plaintiff, under an agreement by which plaintiff was to pay Fanning a commission on every share of stock he sold. Evidence to support this defense was excluded by the trial court, and a judgment was directed in favor of plaintiff.

On this appeal the respondent furnishes us with a large number of authorities to show that agency can never be established by declarations of the supposed agent. We do not question this elementary rule, but it has application only to declarations of the supposed agent out of court, and does not apply to the material testimony of the supposed agent in court, on the witness stand.

[658]*658The judgment and order of the County Court of Suffolk county should be reversed and a new .trial ordered, costs to abide the event.

Jenks, P. J., Burr, Thomas, Carr and Rich, JJ., concurred.

Judgment and order of the County Court of Suffolk county reversed and new trial ordered, costs to abide the event.

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Bluebook (online)

162 A.D. 656, 147 N.Y.S. 786, 1914 N.Y. App. Div. LEXIS 6055, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tiernan-v-havens-nyappdiv-1914.

Opinion

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