#### James B. Lippitt, Respondent, *v.*The St. Louis Dressed Beef and Provision Co., Appellant.

(Supreme Court, Appellate Term,

April, 1899.)

Principal and agent — Proof of agent’s authority to employ an archi- ' tect — Conversations by telephone.

A resident general manager and agent of a foreign corporation, having a right to execute in its behalf an agreement for erecting a building according to the plans of an architect, and also to employ another architect to perform the precise work for which the first seeks to recover, will be presumed to have sufficient authority to employ the first architect, and bind the corporation for the payment of his services.

*Senible,*that conversations over the telephone are not in their nature incompetent evidence.

MacLean, J., dissented on the first point.

*223Appeal from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of Hew York, borough of Manhattan, for the fourth district.

James T. Williamson, for appellant.

Edward Swann, for respondent.

Leventritt, J.

This action was brought on an assigned claim to recover the value of services rendered. The plaintiff contends that one J. G. Glover, an architect, pursuant to employment by the defendant, prepared, at an agreed compensation, certain plans and specifications for the extension of a building occupied by the defendant. The verified answer is, in effect, a general denial.

The judgment in favor of the plaintiff is assailed on two grounds: First, for the failure of proof to establish employment; and secondly, for the erroneous admission of a conversation over the telephone.

1. The defendant is a foreign corporation. One Louis de Casse was its resident general manager and agent, and it is through him that the plaintiff insists that the contract was made. While not conceding employment, the defendant contends that there was no proof of authority in de Casse to bind it. The rendition of the' services was not challenged and as the justice found, upon satisfactory evidence, that the contract of services was made with de Casse, representing the defendant, the only question for us to determine on this branch of the appeal is whether that contract was binding on the principal.

The record discloses ample authority in the agent. The defendant formally admitted that de Casse was its general agent and manager in Hew York, and that he had a right to execute, in its behalf, a certain agreement, which was introduced in evidence and which provided for the erection of a building in accordance with the plans and specifications furnished by plaintiff’s assignor. This agreement is signed “ Louis de Casse, Man’g Agt. St. Louis Dressed Beef *&*Provision Co.”

Moreover to rebut proof of Glover’s'employment, de Casse testified that he authorized, on behalf of the defendant corporation, one Farrell to perform the identical work for the value of which plaintiff seeks recovery, thus asserting his authority to make a contract for architect’s services. This evidence of the power of de Casse *224is supplemented by the following implied admission, made by Mm on Ms direct examination:

“ Q. Did anybody in the employ of the company have any authority to employ him (Glover) *outside of yourself?*A. Under no circumstances.”

These several facts are, in our opinion, .entirely sufficient to prove authority in de Oasse to bind the defendant on the contract Upon which the plaintiff relies.

2. The. defendant’s contention as to the erroneoxis admission of the conversation over the telephone is without merit. Its counsel moved to strike out Glover’s testimony of a conversation had with de Oasse or other employee of the defendant. He assigned no grounds for the motion, and, as such conversations are not. in their nature incompetent (Murphy v. Jack, 142 1SL Y. 215), the failure to specify the objection and thereby afford the plaintiff an opportunity to obviate it, renders the exception unavailable. Bergmann v. Jones, 94 N. Y. 51.

The judgment must, therefore, be affirmed.

Fbeedmait, P. J., concurs.

MacLean, J. (dissenting).

Limited admissions by counsel upon and for the purposes of the trial, that one de Oasse was the defendant company’s general manager and agent in the business of selling dressed beef, and that he had authority to sign a specific contract for the construction of a building, coupled with the fact that the company practically ratified an arrangement by him with another arcMtect, do not seem sufficient to establish authority to make the contract in question, respecting which the defendant deMes both authority and agreement. Uor may any such authority be made out by implied admissions of the alleged agent. Dealing with an assumed agent, the plaintiff’s assignor was bound at Ms peril to ascertain not only the fact of the agency, but also the extent of the. authority, and in this controversy the. burden, of proof was upon the plaintiff to establish both. Mechem on Agency, § 276. The judgment should be reversed. '

Judgment affirmed, with costs.