Warshawsky v. Bonewur

Gaynor, J.: It is the law that it was for the defendant to protect the plaintiffs against the said note when it came due, if the said composition agreement was his (Harloe v. Foster, 53 N. Y. 385). In order to prove this the plaintiffs had to call the defendant and the said employe Melzer. Melzer testified that the defendant never instructed or authorized him to sign the composition agreement. The defendant testified that Melzer had no authority to sign the agreement; that when he left for Europe he left his business in charge not of Melzer but of the said bookkeeper ¡Rosie Goldberg. When his attention is called to the fact that the first of the composition notes came due on March 25, which was over three weeks after his return from Europe (which was on March 1), and that ¡Rosie Goldberg endorsed [252] his name upon it, collected it, and deposited the money in his business bank account, and that he has kept it, his only explanation is, “ I did not interfere much in the store at all”. Moreover, although the defendant knew of the composition agreement and the- facts under it before this action was brought, he did not offer to return the three of the said endorsed notes remaining unpaid, or any of the money collected, nor did he do so on the trial. It cannot be said in extenuation of this tj-iat' the plaintiffs owed him the total amount of the said four notes and check anyhow, and that therefore he had the right to keep them. The plaintiffs only owed him $22 in addition to the.$150 note, and that the plaintiffs had to pay, for in the action thereon against the defendant and them the defendant Was let go on the ground that no notice of non-payment had been given to him. When the defendant went away to Europe, the person he left to-run the business had authority to do all things pertaining thereto, including the collection of debts and compromising with debtors for that purpose. Goldberg had this authority, if she was left in charge, and Melzer had if he was. He signed the composition agreement, but brought the notes and checks given .thereunder to Goldberg, and she received the money on the check, and kept the notes, and collected on the one that came due, as we have seen. If the defendant’s testimony is true, he had negotiated the $150 note before he went to Europe. Goldberg knew that the composition check and notes were not being received in payment of the remaining $22, if we are to believe that Melzer kept the fact of the. composition from her, as he says, for they exceeded that sum inore than twice over. Taking all of the facts, including the failure of the defendant to tender back the cash received and the notes, or at all events all .thereof in excess of the $22, after he became cognizant of the facts, •the evidence that the composition agreement was the defendant’s was ample. The judgment should be reversed. Woodward, Rich and Miller, JJ., concurred. Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.