and 121 New York State Reporter To this office practically in the control of Carr, or at least under his control with the president sitting by him, came the plaintiff. She, as one seeking investment, was introduced to Carr as the secretary of the company, and she came to know Martin as the president. She came again, and told Carr that she had $4,000 to invest. Carr told her that he would take $1,500 thereof, and, after talking with Martin, said they would give her a mortgage on a house on Pulaski street, owned by the company, and that they would take the remainder of her $4,000 later. The plaintiff drew $1,500 from her bank, gave it to Carr in the presence of Martin, and received a bond for the money, and a receipt signed by Carr, and possibly by Martin also, but no mortgage. At the interval of a week she came again, and Carr told her that they would take the remaining $2,500 on property in Jamaica, and Martin confirmed this statement. Carr told her that Mrs. Peters owned the property, but that the company controlled it. She paid the $2,500 in cash to Carr at his desk, Martin standing by. Carr counted it, and it was put in the safe marked with the defendant's name. The plaintiff thereupon received a bond and mortgage for $2,500. The bond was executed to the plaintiff by Mrs. Peters, Carr, and Martin individually, and the mortgage was executed to the plaintiff by Mrs. Peters. No complaint is made as to this mortgage. Later the plaintiff was informed by Carr that the company had disposed or had lost control of the Pulaski street property proposed as security for the $1,500 investment, but that it would substitute other land owned by the company in Flatbush. Martin confirmed this statement, and a map of the land was then exhibited. Thereafter Carr, Martin, and the plaintiff went to view the land. The plaintiff was thereafter told by Carr that one Bender had purchased the land, but was giving back a mortgage which would be made to her directly in her own name. The plaintiff gave up her receipt and her bond, and took the mortgage. For aught that appears, Bender is a myth. Certainly he never owned the land. The plaintiff never investigated the matter, but was lulled to sleep by payments of interest made at the defendant's office by Carr, who took some receipts running to Bender. The mortgage was a forgery. Carr was a thief, and after a time fled the jurisdiction. The defendant repudiates the entire transaction. I think that it cannot be heard to deny the receipt of the $1,500. The defendant held itself out as a real estate investment company, and permitted its business to be entirely managed and controlled by Carr. At least, so far as its business was subject to any daily inspection or supervision, it was only to that of Martin. And the plaintiff says that in all matters, so far as Martin concerned himself, he approved and ratified all that Carr did in receiving the money and in investing it. I do not mean to say that Martin was party to Carr's thefts or forgeries. Far from it, for there is not the slightest proof of this, but that does not alter the effect of his conduct so far as this plaintiff is concerned. Martin may have supposed-and I give him the credit that he did suppose that Carr would invest the money, or had invested it. But, in any event, the evidence is clear that the other officers of the defendant were lax to the last degree, and that the only officer who appears to have participated in the business was blind or was hoodwinked. Here, then, is a real estate and investment company which permitted its routine affairs to be wholly managed by one man, and who invited investors in real estate. When the plaintiff entered the office to make an investment, to whom else could she apply? She had the assurance of the secretary, whose acts were affirmed by the president. The company held itself out as an investment company. The plaintiff was told by the secretary and by the president that it would accept her money for investment, and it was thereupon paid to and accepted by them. In one instance it was deposited in the safe of the defendant in the presence of the plaintiff. There can be little doubt, to say the least, that Carr, as secretary, was clothed by the defendant with the apparent authority to receive that money for investment, and, so far as the plaintiff is concerned, it is enough if the acts or the omissions of the defendant gave Carr such apparent authority. The principle is well stated by Brown, J., in Edwards v. Dooley, 120 N. Y. 540, 551, 24 N. E. 827, 829: "While a principal is bound by his agent's acts when he justifies a party dealing with his agent in believing that he has given to the agent authority to do those acts, he is responsible for only that appearance of authority which is caused by himself, and not for that appearance of conformity to the authority which is caused only by the agent. That is, he is bound equally by the authority he actually gives and by that which, by his acts, he appears to give. For the appearance of authority he is responsible only so far as he has caused that appearance." See, too, Timpson v. Allen, 149 N. Y. 513, 519, 44 N. E. 171. The act of Carr in receiving the money as for the defendant for an investment was connected with the "semblance of authority which he possessed as the defendant's agent," within the limitation expressed in M. L. Ins. Co. v. F. S. S. & G. S. F. R. R. Co., 139 N. Y. 146, 34 N. E. 776, reiterated in Knox v. Eden Musee Co., 148 N. Y. 441, 457, 42 N. E. 988, 31 L. R. A. 779, 51 Am. St. Rep. 700. If not within the exact letter of his authority, nothing could nearer resemble it, for the secretary of a real estate investment company, having full charge of its affairs, receiving all moneys, preparing all papers and the like, received a certain sum for investment in real estate, with the approval and acquiescence of the president thereof. Certainly, the act of receiving the money of the plaintiff by Carr as the secretary of the company was not an act extrinsic to his usual employment or his duties; and it was also one in harmony with the duties of a principal officer and the practical general manager of an investment company. I think that the defendant is estopped (N. Y. & New Haven R. R. Co. v. Schuyler, 34 N. Y. 30, 59, 60; Hannon v. Siegel-Cooper Co., 167 N. Y. 244, 60 N. E. 597, 52 L. R. A. 429), and of the two the plaintiff must be regarded as the innocent person who shall not suffer (Walsh v. Hartford Fire Insurance Co., 73 N. Y. 5). The able and learned counsel for the appellant in his printed points frankly admits that there might be ordinarily some force in the suggestion that innocent third parties might have been misled, but asserts that there is none in this case, because it appeared that the plaintiff had employed Carr as a lawyer, and that he had carried on considerable law business for her. The plaintiff testifies that she had had some trouble with reference to some abuse of her granddaughter, and that in 1901, after her acquaintance and 121 New York State Reporter with Carr, she asked his advice, but never employed him as a lawyer, and that at her instance Carr had guardianship papers prepared, and advised her relative to the will of an ancestor. I cannot see that the principle invoked is at all affected by the fact that the plaintiff, after she had become acquainted with Carr as the secretary of the defendant at its office, consulted him with reference to either of such matters. The defendant also insists that the plaintiff dealt personally with Carr, and not in his official capacity. Under the sign of the corporation and the blazing of Carr's secretaryship therein there also appeared in small letters Carr's name as "Conveyancer and Examiner of Titles." It is testified that Carr was permitted to carry on a private business in the company's office. These facts alone, merely coupled with the failure of proof that the company ever received the money from Carr, or with the proof that it did not receive it from him, are not sufficient to disturb the findings of the learned county court. The failure of Carr to turn over the moneys establishes nothing more than his theft thereof. And there is no question but that he was, generally speaking, a thief. The facts that the plaintiff received interest from Carr by his personal check, or signed receipts running to Bender, are not sufficient to establish that her transactions were not presumed by her to be with or through the defendant, or that she was not justified in presuming that the money had been paid to the company, and received by it for investment. Moreover, the plaintiff testifies that on one occasion, when she called at the office for interest, Martin, the president of the defendant, handed Carr her interest money on the $1,500 mortgage and on the $2,500 mortgage as well. The defendant, having received the money, cannot be heard to plead, as against the plaintiff, that such investment as the payment to it contemplated was ultra vires. Pratt v. Short, 79 N. Y. 437, 35 Am. Rep. 531; Rome Savings Bank v. Krug, 102 N. Y. 331, 6 N. E. 682. Nor should the plea that, as the plaintiff was told that the property belonged to Bender, and that, as she accepted the bond and mortgage directly, thereby she acquiesced in and discharged the company, prevail on the theory that she ratified such act and discharged the company in favor of Bender; for, having accepted the money, the defendant was bound either to return it to her or to invest it for her. It is liable for the fraud or wrongdoing or negligence of its agents or servants. Cragie v. Hadley, 99 N. Y. 131, 1 N. E. 537, 52 Am. Rep. 9; F. A. Bank v. F. S. & G. S. F. R. R. Co., 137 N. Y. 231, 33 N. E. 378, 19 L. R. A. 331, 33 Am. St. Rep. 712; N. Y. & New Haven R. R. Co. v. Schuyler, supra. She had a right to rely upon a fair and due performance of the obligation assumed by the defendant when it accepted her money, and it cannot acquit itself merely by showing that she accepted from its officers a forged mortgage. Moreover, the plaintiff also testifies that she was told by Carr, in the presence of Martin, that the company owned these lots, and that they had sold them to Bender, who was giving a mortgage back. This was virtually an assurance that the company, about to take a mortgage on account of its sale to Bender, instead transferred it to the plaintiff in exchange for her payment to it of $1,500. The judgment should be affirmed, with costs. All concur. INDUSTRIAL & GENERAL TRUST, Limited, v. TOD et al. (Supreme Court, Appellate Division, First Department. April 15, 1904.) 1. CONTRACT-IMPLIED AGREEMENT. Where, on the foreclosure of a mortgage securing the bonds of an insolvent railway company, a receiver was appointed, and a sale of the property was about to take place, and the bondholders appointed a committee, and entered into an agreement to acquire the property covered by the mortgage, and effect a reorganization of the company, either with or without foreclosure, no agreement was implied that the committee should file a plan of reorganization before sale of the mortgaged property. 2. SAME-BREACH-DAMAGE. Where an agreement was made between the holders of bonds of an insolvent railway company, whereby a committee was appointed to acquire property of the company, and to provide a plan of reorganization, the bondholder was not damaged by the breach of contract, if any, of the committee, in failing to file a plan of reorganization before sale of the company's property on foreclosure of mortgage securing the bonds, where the committee purchased the property at the foreclosure sale, and tendered title to the bondholders. 3. SAME-REORGANIZATION OF INSOLVENT COMPANY-RATIFICATION. Where, in an agreement between the holders of bonds of a railway company, it was provided that the plan of reorganization filed by a committee appointed by the bondholders should be binding on them, unless they should withdraw their bonds within 30 days after notice thereof, the consent and approval of the plan by a bondholder was conclusively given by its failure to withdraw its bonds within the prescribed time. 4. AMENDED COMPLAINT FACTS OCCURRING AFTER COMMENCEMENT OF ACTION. Where an amended complaint was served in an action at law, facts stated therein, though occurring after the commencement of the action, may nevertheless be considered in determining the rights of the parties. Action by the Industrial & General Trust, Limited, against J. Kennedy Tod and another. Motion for a new trial on exceptions taken to the dismissal of the complaint at the close of plaintiff's case ordered to be heard in the first instance at the Appellate Division. Motion denied and exceptions overruled. Argued before VAN BRUNT, P. J., and HATCH, McLAUGHLIN, O'BRIEN, and INGRAHAM, JJ. Louis Marshall, for plaintiff. MCLAUGHLIN, J. This action was originally brought to recover damages for the alleged conversion of certain bonds of the Birmingham, Sheffield & Tennessee River Railway Company. The plaintiff had a recovery, which was affirmed by this court (52 App. Div. 195, 64 N. Y. Supp. 1093), but reversed by the Court of Appeals, and a new trial ordered (170 N. Y. 237, 63 N. E. 285). Intermediate the reversal of the judgment and the new trial, the plaintiff, by permission of the court, served an amended complaint, by which the action was changed from one to recover for conversion to one to recover for the breach of a contract. The issues raised by an answer to the amended complaint came on for trial, where, at the close of plaintiff's case, the complaint was dismissed, and the exception taken and 121 New York State Reporter thereto, as well as those taken during the trial, ordered to be heard in the first instance at the Appellate Division. There is little or no dispute as to the material facts involved. On the 1st of April, 1889, the Birmingham, Sheffield & Tennessee River Railway Company, a corporation organized under the laws of the state of Alabama, executed a mortgage to the Knickerbocker Trust Company of New York upon all its property, including its franchises, to secure the payment of an issue of bonds and coupons thereto attached, of which there was then or thereafter issued 2,975 bonds, of the par value of $1,000 each. In June, 1893, the railway company having previously defaulted in the payment of the interest on the bonds, the trust company instituted a suit in the United States Circuit Court for the Northern Division of the Northern District of Alabama for the foreclosure of the mortgage, and the sale of the property covered thereby. In this suit a receiver was appointed pendente lite of all the corporate property of the railway company. At the time the suit was commenced and the receiver appointed, the plaintiff, an English corporation, held 570 of the bonds above referred to, which it had previously placed in the hands of its counsel in New York, Mr. Untermyer, who then and thereafter represented and looked after its interest with reference thereto. The receiver endeavored to effect a reorganization of the railway company, but his efforts in this direction were unavailing; and on the 9th of April, 1895, a reorganization agreement was executed, by which J. Kennedy Tod, Edmund A. Hopkins, and James G. Leiper were appointed a committee to represent the bondholders. In pursuance of this agreement, the plaintiff, through Mr. Untermyer, deposited its bonds with the Manhattan Trust Company, and received in lieu thereof a certificate, negotiable in form, which stated that the bonds were held by the Manhattan Trust Company in accordance with the terms and conditions of the reorganization agreement. This agreement, when the case was before the Court of Appeals (170 N. Y. 234, 63 N. E. 285), was summarized by it as follows: "This reorganization agreement recited the insolvency of the railway company, the pendency of the foreclosure proceedings, the appointment of a receiver, and the necessity for the bondholders to reorganize for the protection of their mutual interests. It provided, in the first article, that the bonds should be deposited with the Manhattan Trust Company, 'subject to the order and full control of the committee, to be used for any purposes under this agree ment. The deposit of such bonds shall transfer to the committee the full legal and equitable title thereto for all the purposes of this agreement.' The second article constituted the defendants a reorganization committee, and in succeeding articles were set forth the powers of the committee. The fourth article provided, so far as material, that 'the committee is hereby expressly authorized and empowered, and it shall be its special duty, to prepare and adopt a plan for the reorganization of the affairs of the railway company, with or without foreclosure. When the committee shall have adopted such plan, a copy thereof shall be lodged with the Manhattan Trust Company. Notice shall thereupon be given to the holders of the trust certificates issued hereunder, and such plan shall become binding upon all of the said holders who do not withdraw herefrom (in the manner hereinafter provided), unless the holders of a majority in interest of the said certificates, shall, within twenty days after such notice, file with the Manhattan Trust Company their written dissent from the plan.' The fifth article provided, so far as material, that any holder of a trust certificate issued hereunder may, at any time within thirty days |