John Beattie, Survivor, etc., Respondent, v. The Delaware, Lackawanna and Western Railroad Co., Appellant

John Beattie, Survivor, etc., Respondent, v. The Delaware, Lackawanna and Western Railroad Co., Appellant. (Argued June 29, 1882; decided October 17, 1882.) This action was brought to recover the value of certain stone used in the construction of a bridge on defendant’s road, alleged to have been delivered at defendant’s request and upon its promise to pay. ' The defense was that the stone were delivered to one Howe, who had the contract to build the bridge and to furnish the materials. The referee found, upon evidence the court deemed sufficient, that the stone in question were drawn and delivered under the direction of defendant’s officer, and upon its promise to pay. The promise was made by one Archbald, defendant’s chief engineer, and upon the question of his authority plaintiff was allowed to prove, under objection and exception, a similar purchase of cement used in the construction of the bridge, which was paid for by defendant. Held no error. The court say: “ It was pertinent and not immaterial. Archibald’s authority to act for the defendant, in relation to the stone, was in issue; it might be established by circumstances, and among others the recognition by the defendant of acts on his part similar in character to those in controversy. (Olcott v. Tioga R. R. Co., 27 N. Y. 546, 560.)” Hamilton Odell for appellant. 8. B. Crittenden for respondent. [MAJORITY — Danforth, J.,] Danforth, J., reads for affirmance. All concur. Judgment affirmed.