Opinion
April, 1906.
Albert I. Sire, for appellant.
Wentworth, Lowenstein Stern and Wales F. Severance, for respondents.
The material issue was, did the defendant Leighton have authority to trade the property mentioned and described in the complaint? If he did, the ruling of the court was right. If he did not, such ruling was wrong.
I am of the opinion that the defendant Leighton did not have the right to trade the property mentioned and described in the complaint, and that the defendant Richards knew that Leighton did not have the right to trade such property. Richards testified that he knew that Leighton was not the owner of the property. He knew that Leighton was acting as agent for Jones. He did not ask whether Leighton had authority to exchange the property or not. He knew to whom the property was billed on the books of Mr. Harrison, the stable keeper.
It is well settled that, under such circumstances, an agent has not the power to pledge or mortgage his principal's property to a third party. 1 Am. Eng. Ency. of Law (2d ed.), 1174; Beck v. Donohue, 27 Misc. 230; Block v. Dundon, 83 A.D. 539; Edwards v. Dooley, 120 N.Y. 540. I am also of the opinion that it was error for the court to dismiss the complaint as against the defendant Leighton, although it appeared on the trial that Leighton had parted with possession of the property in suit. Nichols v. Michael, 23 N.Y. 264; cited with approval in Sinnott v. Feiock, 165 id. 447. See also Barnett v. Selling, 70 N.Y. 492, and Dunham v. Troy Union R.R. Co., 3 Keyes, 543.
SCOTT and BISCHOFF, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.