The New York herald., 1876-09-10
UNITED STATES SUPREME COURT.
DECISIONS.
WASHINGToN, !

wAsnISGroS, Sept 0, 1875.
PRINCIPAL AND AGENr--rHE ATTORNEY Is
NOT THE AGENT OF THE CREDITOR EMPLOYING THE
William H. Hoover, assignee Elias s Oppenheimer,
plaintiff in error, VS. Abraham Wise and others--ln
the Supreme Court OF the State OF New York.
This action brought by an assignee IN bankruptcy
recover back sum Of money collected from the
bankrupt the OF several acts OF bank.
ruptcy. Under the practice Of the State of New York
the referred to a referee, upon whose report
Judgment was entered at the Special Term in favor
the piantG. From this judgment an appeal taken
by the defendants To the General Term Upon the
hearing oil the General Term this judgment was re-
versed and trial was ordered
When Judgment is reversed and new trial ordered
two modes OF proceeding are open TO the defeated
party the practice of the State OF New York He
accept the terms OF the order ana take new trial
IN the below. Ii he supposes that he make
better upon the iacts Than contained in the
port OF the this Will be his proceeding If he
make Improvement in this respect or II he il salts
lied TO risk upon the facts as found, he may
take appeal to the Court OF Appeals from the order
granting a new trial To make this appeal enectua his
notice of appeal must contain - consent on
the part of the appellant that If the order
appealed from be affirmed Judgment absolute shall
be rendered against him. Code III par.) The order
Tor a trial thus becomes final judgment in the
case. The latter course adopted In the present
instance The paintin appealed to the Court Of Ap-
peals giving the stipulation required to that purpose
Inc Court OF Appeais alhr.hed 'ne Juosu o .ne
General Term and RENTED the record TO the Supreme
Court that the judp pment might be there entered and
enforced. From this Judgment entered upon that re-
mittitur the present writ OF error is brought IL ap
pears IRON the record that an account or money de-
mand delivered by its owners TO Archer Co, a
collecting agency the city New York. and received
by them with instructions collect debt aud with
no other instructions; that this agency trans
mit;ed the claim TO McLennan & Archboid
a firm o practising lawyers in Nebraska
City Several acts Of bankruptcy had been
committed 10y Oppenhemer when Mr. Mcl.ennan per-
suaded him to confess Judgment for the debt thus
to him. Proceedings in bankruptcy were instituted
against Oppcnheimcr within four months after such
conlession aud were prosecuted to decree OF bank
ruptcy. At the OF receiving the confession
McLennan well aware OF the insolvency OF Open
hrmcr and that the confession was taken in VOCATION
OF the provisions Of the Bankrupt act The money
collected was remitted the collection agents in New
York from whom he received the claim, but never
paid by them 10 Wise ~ Greenbaum, tie creditors.
When the debt question delivered to the colec.
tion agency in New York IT Was so delivered as tes
titled TO by one OF It's officers, Tor collection -
in New York. l gave them directions except
try their best to collect 1t; they told me they would
send II out to Nebraska gave no other instructions
"Thc business of Le1yard, Archer 4 Co., he says,
to take claim for collection IN different paris oil
the country and, If necessary, to have them sued"
Mr.. Archer OF the collection firm, icstiics that he
received claim coliccton tnat he told the de-
PENDANTS il sent at he thought II could be coli
lected that the account was verified by Que OF the de.
iendans and sent by the witness to Mr. McLennan, 4
lawer at Nebraska City that he aitcrward told tho
defendants the account had been put in judgment and
that he hoped TO take the money the greater part OF
II. When he made this communication he had Mclen-
mans letter his hand and communicated IL 10 the de-
cndans He further testified that the money had been
received by HIM from Mciennan. but had not been
paid over to Wise 4 Co The defence held the know
ledge OF the condition OF the bankrupt by the attorney
residing Nebraska. who took the confession OF judg
ment. the knowledge OF the creditors in New York
The supreme Court and the Court OF Appeals hold the
reverse, finding them 10 be the agents of Archer Co.,
and not of the creditors and reversed the judgment
entered upon the report of the referee
This Courl airns the judgment OF reversal, after o
full examination oi the authorities holding that attor
neys employing are the agents OF the collection
agents employing them, and OF the creditor who
poyed the agents, and that the knowledge OF the Ne
braska attorney OF the bankrupt condition of Open
heimer was not chargcable to Wise Co
Mr.. Justice Hunt delivered the opinion. Dissenting e
Justices Clifford, Miller and Bradley.