James A. Deering, Appellant, v. Sarah M. Starr, Respondent

James A. Deering, Appellant, v. Sarah M. Starr, Respondent. (Argued December 4, 1889; decided December 20, 1889.) Appeal from judgment of the General Term of the Superior Court of the city of New York, entered upon an order made December 31, 1886, which affirmed a judgment in favor of defendant, entered upon an order dismissing the complaint on trial. This action was brought to recover the compensation agreed between plaintiff and the German Savings Bank of New York, to be paid the former for his services in procuring the reduction of an assessment upon certain real estate owned by the latter, which sum plaintiff claimed defendant assumed and agreed to pay. Subsequent to the agreement the said bank contracted to sell the premises to one Wood, as “trustee.” Nothing was said in said contract as to the agreement with plaintiff, and the only reference to assessments was this, the property was to be conveyed “subject to all assessments now or hereafter liens upon the premises.” At the time of the performance of the contract of sale, at the request of Woods, the property was conveyed to defendant “ subject to all assessments now liens upon said premises.” At the time of the delivering of the deed, which was in February, 1880, Wood was informed of the contract between the bank and plaintiff, and agreed to assume the same, Wood was called by plaintiff to prove he was acting as agent for defendant. He testified that when he made the contract his intention was to pay tlie purchase-price out of funds in his possession belonging to his wife, but upon her refusal to become the purchaser, defendant agreed to accept a deed and perform the contract of purchase, and gave him the money for that purpose. Wood denied any authority from defendant to assume the agreement on the-part of the bank with plaintiff, and denied that he made any agreement to assume the same. An order vacating the assessment was made in 1882. Held, that the burden was upon plaintiff to show affirmatively Wood’s authority from defendant to assume the contract with plaintiff, and as this was not shown that the complaint was properly dismissed; that the authority to take the deed fur her, gave him no power to add to the consideration expressed in the contract, or to attach any new condition to the delivery of the deed. Nathaniel C. Moak for appellant. Albert Mathews for respondent. [MAJORITY — Brown, J.,] Brown, J., reads for affirmance. All concur. Judgment affirmed.