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Will you

Second Department, October, 1911.

[Vol. 146. lots designated in such letter. On March seventh Sage wrote the company: “Mr. Marquart, president of the Amityville Terrace Realty Co. has applied to me for a loan of $8,000 on about 1100 lots or 91 acres of land at Amityville. Mr. Russell of your Jamaica office wrote me on March 4th with reference to the title. I have arranged with the Realty Co. to close the matter in this office on March 28th at 2 P. M. and would thank you to have your report on title to me a few days before that time. I understand from Mr. Marquart that the price is to be $222.50, of which the usual 25% will come to me. I enclose a slip which he left me which I presume you wish made out.

you answer confirming this.” To which plaintiff replied that they had the title to be reported on March twenty-fifth by lawyer's certificate, so that the loan could be closed on March twenty-eighth. It developed later that there were a number of defects in the title, to which the attention of the plaintiff had not been called and which were not covered by its “Lawyer's Certificate," and the proposed loan was not made. Up to the time these defects were discovered, Sage represented the plaintiff as well as the person who was to make the loan, and at this time the plaintiff procured other counsel.

At the close of the testimony the trial court dismissed the complaint as against the defendant realty company, and rendered judgment against Sage for the full amount claimed.

The realty company was the principal in procuring plaintiff's services, and it is apparent that the plaintiff knew that it was dealing with that company as principal. The application for the title policy had been made by the company and accepted by the plaintiff before Sage had any communication with the latter regarding the matter. The correspondence between Sage and the plaintiff of itself advised the latter that Sage was acting in the interest of a person about to make a mortgage loan, and that the title policy was to be furnished to enable Sage to determine the title before the loan was made. It seems to me that the agreement under which plaintiff acted was made with the realty company direct, and the credit was given to that company. Furthermore, it plainly appears that the plaintiff knew that Sage was acting as an agent and in a representative capacity only, and for this reason he was not App. Div.] Second Department, October, 1911. liable. (Title Guarantee & Trust Company v. Levitt, 121 App. Div. 485; Argus Company v. Hotchkiss, Id. 378; Bonynge v. Field, 81 N. Y. 159; Middleworth v. Blackwell, 85 App. Div. 613; Covell v. Hart, 14 Hun, 252.) When the principal is known the agent is not liable unless he has assumed a personal liability in clear and unmistakable language. (Collierv. Myers, 52 Misc. Rep. 116; Hall v. Lauderdale, 46 N. Y. 70; Anderson v. English, 105 App. Div. 400, 404; Fisher v. Meeker, 118 id. 452; Jones v. Gould, No. 2, 123 id. 236, 239.)

The respondent's contention that Sage should have disclosed his principal is without weight, because the evidence establishes that plaintiff had this information.

The judgment of the Municipal Court must be reversed and a new trial ordered, costs to abide the event.

HIRSCHBERG and WOODWARD, JJ., concurred; JENKS, P. J., and BURR, J., dissented.

Judgment of the Municipal Court reversed on reargument, and new trial ordered, costs to abide the event.

FLORENCE O. OPPIKOFER, Appellant, Respondent, v. John W.

MURPHY, Respondent, Appellant, Impleaded with EDWARD STRATTON, JR., and Others, Defendants.

Second Department, October 6, 1911.

discount

- judgment for

Bills and notes -- action on note usury

sum realized.

Where in an action on a note defendant alleged and gave evidence to show

that the instrument was usurious at its inception, it is error for the trial judge to direct a verdict in plaintiff's favor for the amount which was received on the note when first discounted, for if defendant's contention was established, the complaint should have been dismissed; if not, plaintiff should have had judgment for the amount of the note.

CROSS-APPEALS by the plaintiff, Florence C. Oppikofer, and the defendant, John W. Murphy, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 27th day of April, 1911,

Second Department, October, 1911.

[Vol. 146. upon the verdict of a jury for $358.99, rendered by direction of the court, and also from an order entered in said clerk's office on the 24th day of April, 1911, denying the plaintiff's and the said defendant's motions for a new trial.

Louis J. Somerville, for the plaintiff.

John J. McGinniss [Henry M. Cummings with him on the brief], for the defendant Murphy.

WOODWARD, J.:

The plaintiff brings this action to recover the sum of $830 and interest on a certain promissory note for that amount, made by the defendant John W. Murphy to the order of the defendant Edward Stratton, Jr., indorsed by the defendants Edward Stratton, Jr., Evelyn K. Stratton and Bayside Review Company. From the record it appears that the indorsements of Evelyn K. Stratton and Bayside Review Company were merely for the purpose of lending their credit to the paper, and as no judgment is sought against them, they being insolvent, it is not necessary to consider them further in this appeal. The plaintiff proved the note and rested. The defendant Edward Stratton, Jr., was called as a witness and testified that he had negotiated with the plaintiff's father, Charles C. Overton, at the time of making the indorsement in September, 1908, having had previous business transactions with him, and being hard pushed for money he induced Mr. Overton to discount the note for $315, which was the only money he received on the note. He likewise testified that Mr. Murphy owed him no money, and that he had told Mr. Overton that the note was an accommodation note. The defendant Murphy in his answer alleged the usurious transaction, and the learned trial court, in directing the verdict on motion of both parties, told the jury to bring in a verdict for the plaintiff, not for the face of the note but for the amount which the defendant Stratton had received upon the same from plaintiff's father. This must be deemed to be equivalent to a finding that the note, at its inception, was transferred for a consideration which would yield very much more than the legal rate of interest, for unless this was the case the plaintiff was clearly entitled to the full face value

App. Div.] Second Department, October, 1911. of the note. If the defendant Murphy had established that the note, at its inception, was tainted with usury, he was entitled to a verdict, and the learned court erred in endeavoring to introduce equitable considerations and directing a verdict in favor of the plaintiff for so much as the note had realized to Stratton. The law of this case, assuming the facts as they must have been found by the court in directing the verdict here under consideration, has been fully settled by the case of Strickland v. Henry (66 App. Div. 23), and it does not appear to be necessary to go over the question again.

The judgment and the order denying defendant's motion for a new trial should be reversed and a new trial granted, costs to abide the event.

JENKS, P. J., THOMAS, CARR and Rich, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.

In the Matter of the Judicial Settlement of the Several

Accounts of CHARLES M. CHAMBERLAIN and JAMES E. GRAY

BILL, as Executors, etc., of MARGARET J. MAURICE, Deceased. SUSAN C. HOGE, Appellant; JULIA C. SMITH, Respondent.

Second Department, October 20, 1911.

Contract - decedent's estate - agreement to pay for services at end of

term.

Where a testatrix by written contract promised to pay a teacher in her

school a certain yearly salary for five years and "$2,000 invested or otherwise" at the close of such term, and at her death, about five years later, the agreement was found among her papers in company with two bonds of $1,000 each in an envelope addressed to the teacher, the latter is entitled to the bonds.

APPEAL by Susan C. Hoge, the residuary legatee, from a decree of the Surrogate's Court of the county of Queens, entered in said Surrogate's Court on the 9th day of February, 1911, on the judicial settlement of the account of Charles M. Chamberlain and another, as executors.

[graphic]

Second Department, October, 1911.

[Vol. 146. William H. Good, for the appellant.

John M. Harrington, for the respondent. WOODWARD, J.:

The question presented upon this appeal is whether Julia C. Smith is entitled to be paid the balance of a salary as a school teacher, amounting to about $900, together with an extra allowance of $2,000, under a contract between the said Julia C. Smith and Margaret J. Maurice, deceased. The question was submitted to the learned surrogate in the manner provided by law, with the consent of the parties, and the facts which the evidence discloses justify the conclusion of law made in the proceeding.

The facts as they are conceded to exist may be briefly summarized. For a number of years Miss Smith had been employed by Margaret J. Maurice, now deceased, as a teacher in a charitable school at Maspeth, Queens county, at a salary of about $390 per year and expenses. In 1906 the decedent wrote a letter to Miss Smith, inclosing a formal agreement for a hiring of five years, the terms of the hiring being the same as those under which Miss Smith had been employed, except that it was provided that at the close of the term Miss Smith was to have “$2,000 invested or otherwise.” This agreement was not signed, but it was a part of the contents of a communication signed by the decedent, and was a part of a series of communications passing between the parties, and there is no dispute that Miss Smith has performed the agreement in good faith on her part, and it is conceded that Miss Maurice made payments upon the account during her lifetime, so that we are of the opinion that the suggestion that the contract was void because of the Statute of Frauds is without force. It appeared in the evidence that Miss Maurice subsequently wrote to Miss Smith, requesting her to return the agreement, though nothing was said about an intention to cancel or withdraw the same, and that Miss Smith did return the paper, and that this paper was found in an envelope among the papers of decedent, in company with two railroad bonds of $1,000 each, the envelope being addressed in decedent's handwriting, “Miss Julia C. Smith” It seems clear, therefore, that the purpose of the decedent in

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