respect to some of which there is an apparent conflict of evidence, but in the shape in which the questions involved come before this court this conflict of evidence cannot be considered, but it must be resolved in favor of the ruling which has been made by the learned court.

It is claimed upon the part of the defendant that the plaintiff cannot recover because Grant & Ward were not shown to be the owners of the bonds and because neither Doty as treasurer of the defendant, nor its president, nor the two combined, had any right to create any indebtedness or borrow any money in the name or on behalf of the defendant from the Marine Bank without the authority of the board of directors, and no such authority was given to them or either of them; that the said note for $15,000 signed and delivered on the 29th of August, and antedated to the 15th of August, was signed without the knowledge or authority of the defendant and the same was never ratified by said company and was utterly void as against the company; that Doty had no authority to borrow or pledge said bonds or either of them and in fact he did not borrow and pledge same either individually or as treasurer of said company, but simply delivered the same to the cashier of the bank as clerk of said Ward and acting under his directions; and that this whole transaction took place without the knowledge or authority of the defendant, and without any subsequent ratification thereof by it.

There are various other propositions advanced in opposition to the ruling of the court, but it is not necessary to repeat them at length, because they are substantially involved in those to which attention has already been called.

The claim that Grant & Ward were not the owners of the bonds, and that, therefore, the plaintiff, as receiver, had established no claim in this action, seems to be based upon the proposition that, because in the schedules of assets as filed they were not mentioned by the receiver, he has proved no title. We think the evidence clearly justified the learned court in holding that Grant & Ward were the owners of the bonds, and their mere omission from the schedules by the receiver in no manner tended to weaken the force of the evidence showing that these bonds came from the assets of Grant & Ward to the hands of the defendant to be pledged as collateral to the note.

It seems to us further that the evidence in this case not only justified but compelled the finding that Doty in all his trransactions in reference to this loan of $15,000 acted clearly within the scope of his authority.

It seems to us that the fact that he had the authority to make this note is established beyond question, because prior to the commencement of this suit such authority never has been questioned. In fact, his authority seems to have been considered so complete by the directors of the defendant that, even after this note had actually been paid, they thought it necessary to pay it over again, for it appears from the evidence without dispute that these bonds were sold for the purpose of paying this note, and that it was the condition under which the receiver of Grant & Ward con

sented to the sale of the bonds by the receiver of the bank that the proceeds should be applied to the payment of the note and the note marked "paid." And it further appears that when the receiver, the holder of the note, received the proceeds of the sale of the bonds he applied them to the payment of the note, marked it paid and delivered it over to be handed over to the defendant. Of all these negotiations and transactions with the receiver of the bank the officers of the defendant were cognizant, and the authority of Doty in making this loan or in signing this note was never questioned.

Under these circumstances, it seems to us it is too late for the defendant now to say that Doty had no authority to sign this note, when they acknowledged it as a doubly valid obligation. It is said they have not ratified the action of Doty, but it seems to us they have ratified it not only once but twice in the most deliberate and formal way, having provided on two occasions the means for its payment.

But it is said that the note having been paid out of the proceeds of the sale of these bonds, it was a payment of the obligation of the defendant by a volunteer. That position entirely ignores the fact that the evidence justified the finding that Doty, Fish and Ward were managing the financial affairs of the defendant corporation, and that they were in the habit of borrowing money for it, as appears by the existence of these overdrafts, and there is no pretense but that the money resulting from these overdrafts was devoted to the business of the corporation, and that the amount of this loan went to pay the debt of the corporation to a very large amount, and the balance went into the ordinary bank account of the corporation. Now will this corporation be permitted to say, with the proceeds of this note in its pocket, that Doty had no authority to borrow upon the note?

And if he had authority to borrow upon the note, he had equal authority to make the note secure. He had authority to borrow these bonds for the purpose of pledging them as collateral for the note, and this transaction has been ratified by the defendant company. Knowing that these bonds had been borrowed for that purpose, and had been pledged as security for this note, they participated in the transaction by which these bonds were applied to the payment of their debt. There was no pretense or suggestion then, when their debt was being paid, that some volunteer was paying it. The means were provided by and with the knowledge of these directors for the payment of this note, and not a word is said about a want of authority upon the part of Doty to borrow the bonds and to pledge them as collateral to the note. And this conduct is in entire consonance with the testimony in regard to the financial affairs of this corporation.

It appears that the management of its financial affairs were committed to Mr. Ward and Mr. Fish, and that the directors trusted in their judgment so far as the bank account was concerned. The president testified that he did not consider it a part of his duty to oversee them, or what was being done in regard to the finances of the company; that he did not know whether the bank account

was overdrawn, nor did he consider it part of his duty to ascertain, because it was entirely under the control of Fish or Ward; the management of the bank account was entirely under their

control.

Now it is well settled that where a board of directors have acquiesced in the assumption upon the part of one of its officers of the exclusive management of its bank business, the bank cannot dispute the binding force of the arrangement made by such officer in reference to its bank business. Martin v. Webb, 110 U. S., 7; Fifth Nat. Bk. v. Navassa Phosphate Co., 119 N. Y., 256; 29 N. Y. State Rep., 686.

In the case at bar the evidence goes further, and supports the conclusion that the management of the financial affairs of the defendant was expressly committed to Messrs. Fish and Ward and Doty.

A large amount of space in the briefs of the respective counsel is devoted to the discussion of the peculiar relations arising between Grant & Ward and the defendant resulting from this transaction. It does not seem necessary to enter into this discussion, because the fact appears that Grant & Ward, at the request of the defendant, supplied the means for paying its debts, which now the defendant desires to keep without recognizing the obligation to repay that which it virtually borrowed.

The amount of the damage which Grant & Ward sustained is the amount of the proceeds of their bonds which was applied to the payment of this note.

This is the amount for which the verdict was directed, and we see no reason for interfering therewith.

The exceptions should be overruled, and the plaintiff should have judgment upon the verdict, with costs.

BRADY and DANIELS, JJ., concur.

THOMAS J. TURNIER, Pl'ff, v. RICHARD LATHERS, Def't. (Supreme Court, General Term, First Department, Filed February 11, 1891.) NEGLIGENCE EVIDENCE.

The plaintiff, an ice dealer, while attempting to deliver ice, by a handelevator, to a tenant in an apartment house, was injured because the rope of the elevator broke. Plaintiff made no proof of any defect in the rope or elevator. Held, that he had not made out a prima facie case of negligence. It is only where a contractual relation exists between the parties that the doctrine, res ipsa loquitur, applies.

EXCEPTIONS ordered to be heard in the first instance at the general term.

S. C. Baldwin, for pl'ff; Richard O'Gorman, for def't.

BRADY, J.-The plaintiff sought to recover damages for injuries received while attempting to deliver ice to a tenant in the apartment house No. 178 East Ninety-third street in this city, owned by the defendant. An elevator or dumb waiter was provided in order more easily to lift or send articles to the upper floors. It could be worked by any person by means of an endless rope, and

near it there was a speaking tube placed in the wall which enabled the occupants upon the different floors to converse with each other. On the 9th November, 1888, the plaintiff essayed to deliver 15 pounds of ice to one of the tenants as already suggested. He placed the ice on the elevator and began to hoist it, having previously given the signal to the floor to which it was to be sent, when the rope mentioned broke and the dumb-waiter was precipitated, striking him upon the head, knocking him senseless and causing to him serious injuries. There is no pretence that the plaintiff was negligent in any respect, and although some legal propositions other than the one to be discussed were presented, it will not be necessary to consider them.

The signal point is the absence of any evidence of the condition of the elevator or the rope, the plaintiff resting his case upon the mere proof of the accident. Why the rope broke is, therefore, left to conjecture opinion, unsupported by proof, and speculative theory. In other words, the plaintiff depends upon the fact that the rope broke and the waiter or elevator fell. This was not suffi cient to establish his cause of action. It was necessary for him to prove something, either showing negligence per se or from which it might be presumed or inferred. The rule res ipsa loquitur does not apply except where contractual relations exist between the parties. Wiedmer v. N. Y. El. R. R. Co., 114 N. Y., 468; 23 N. Y. State Rep., 859; Cosulich v. Standard Oil Co., 33 N. Y. State Rep., 287, 293. The learned justice delivering the opinion in the last case, said the court below failed to recognize a distinction which has been carefully guarded by the courts of this state, as well as by nearly all of the jurisdictions in the country, between actions founded on negligence where no contract existed between the parties and those in which the defendant owed no other du ties than to use such ordinary care and caution as the nature of the business demanded to avoid injury to others. And it is said (see 2 Thompson on Negligence, 1227), but it is believed that it is never true except in contractual relations, that the proof of the mere fact that the accident happened to the plaintiff will amount to prima facie proof of negligence on the part of the defendant. The cases in confirmation of this rule might be multiplied, but that is deemed unnecessary.

The exceptions taken to a refusal to permit proof of what the person said, supposed to be in charge of the premises, in regard to the elevator or dumb waiter are of no value. There was no evidence that he was charged with any power to represent the defendant in any respect, or that he was the janitor of the building, so called. There is no value, either, in any of the other exceptions. The plaintiff's difficulty was the absence of the essential proof mentioned, and all the attempts to supply it by collateral circumstances failed for the reason that the testimony offered was not admissible.

The complaint was for these reasons properly dismissed, and the exceptions should be overruled and the defendant should have judgment, with costs.

VAN BRUNT, P. J., and DANIELS, J., concur.

ROBERT CONNOR, Pl'ff, v. CHARLES CONNOR et al., Def'ts. (Supreme Court, General Term, First Department, Filed February 11, 1891.) PARTITION-REFERENCE-PUBLICATION OF NOTICE.

Section 1562, Code Civil Procedure, as amended in 1887, states that, upon a reference directed as prescribed by § 1561, "the referee must cause a notice to be published once in each week for six successive weeks in such newspaper published in the county wherein the place of trial is designated as shall be designated by the court directing said reference, and also in a newspaper published in each county wherein the property is situated, requiring each person," etc. The property in question was situated only in New York county and under the designation of the court publication was made in only one newspaper published in said county. Held, sufficient; the section does not require publication in two newspapers unless the property is situated in two counties.

APPEAL from an order entered herein denying a motion to vacate the interlocutory judgment entered herein.

Kelly & MacRae, for app'lts; B. F. McCahill, Matthew Daly, Francis J. Bischoff, William R. Syme, Thomas J. McCahill and John Whalen, for resp'ts.

BRADY, J.-This is an appeal by the defendants McGarrity, who were purchasers at the sale in partition herein, from an order made by Mr. Justice Andrews refusing to set aside the interlocutory judgment on the ground that notice to creditors having liens against the parties to the action by advertisement was not given and that as there are lien creditors not cut off the sale of the premises was irregular and should not be confirmed. Concurrently with the motion to set aside the judgment, a motion was made to confirm the sale, but the proceedings were stayed pending this appeal. The alleged irregularities were as follows:

First. That a certain corporation known as the John Kress Brewing Co., a mortgagor, had not been made a party to the action and had not received notice of the application for the judgment.

Second. The second alleged irregularity is that the referee advertised for liens for six weeks (6) in only one newspaper.

The first objection is of no value, for the reason that the notice of lis pendens in this action was filed on the 7th day of June, 1889, and the mortgage was not executed or recorded until the 23d day of November, 1889, which was more than six (6) months after the filing of the lis pendens. It is expressly provided by § 1671 of the Code that a person whose conveyance is executed or recorded after the filing of the notice of lis pendens is bound by all proceedings taken in the action after the filing of the notice to the same extent as if he were a party to the action. Fuller v. Scribner, 76 N. Y., 190; Kindberg v. Freeman, 39 Hun, 466. The next objection in regard to the publication does not seem to be well taken. Section 1562 of the Code provides where a reference is directed in an action of partition, the referee must cause a notice to be published once in each week, for six (6) successive weeks, in such newspaper published in the county wherein the place of trial is designated as shall be designated by the