Opinion
January 6, 1915.
David Tice [ Lexow, MacKellar Wells, attorneys], for the appellant.
S. Wallace Dempsey [ Stacy D. Behe, attorney], for the respondent.
Defendant was duly appointed the trustee in bankruptcy of the United Engineering and Contracting Company, a corporation. At the time it was declared a bankrupt it had a construction plant in the county of Niagara and was then and prior thereto had been engaged in construction work on the Erie canal under a contract it had with the State. As a part of its plant used in the construction work, to the title to which defendant succeeded on his appointment as trustee, were certain horses and mules. After defendant's appointment he, during a period of some fourteen months, continued the business of the corporation in completing the contract, using its plant, including the animals above referred to, for that purpose. At various times during the period in which these animals were so used they were by defendant's employees, or agents, voluntarily, or negligently, permitted to escape upon plaintiff's premises and graze thereon. For these trespasses plaintiff has recovered his verdict in this action.
It does not appear that the defendant was authorized by any order of the Bankruptcy Court, as provided by section 2, subdivision 5, of the Bankruptcy Act, to continue the business of the bankrupt. (See 30 U.S. Stat. at Large, 546, § 2, subd. 5, as amd. by 32 id. 797, § 1.) In the absence of proof of that fact, we think the defendant's liability, if any, for the damages so caused was personal and not in his representative capacity as trustee. ( Decillis v. Mascelli, 152 App. Div. 304.)
The judgment and order should be reversed and a new trial granted, with costs to appellant to abide event.
All concurred.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.