Opinion
January 10, 1908.
Edward M. Grout, for the appellant.
A.P. Bachman, for the respondent.
It was conceded upon the trial that the plaintiff had performed the services claimed by him to have been rendered to the defendant, and that they were worth the amount claimed. Plaintiff's employment was shown by a postal card sent by the defendant to the plaintiff, reading as follows:
"DEAR SIR. — Will you do me a favor and remove dirt in front of 4 story Buildings on 51 St bet 3 and 4 Ave at once and sent Bill to me. Mr. Bauer of Myrtle Ave Broadway recommended you. Your attention will oblige Yours truly,
"ANDREW RUEGAMER, JR., Trustee."
The defense is that the defendant was acting as trustee for creditors, and hence not liable because he was a mere agent; but it is undisputed that the plaintiff was not advised and did not know whom the defendant represented. Under the evidence as it stands the plaintiff was entitled to recover. ( Argersinger v. Macnaughton, 114 N.Y. 535.)
The judgment should be reversed and a new trial ordered.
WOODWARD, JENKS, GAYNOR and MILLER, JJ., concurred.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.