Fowler v. . Bowery Savings Bank , 113 N.Y. 450 ( 1889 )

I am unable to concur in the opinion delivered in this case.

I am of the opinion that the prosecution of Flynn by the plaintiff's intestate was not a ratification of the payment by the bank to him. Flynn, in obtaining such payment, neither represented or assumed to represent Mrs. White, and the bank did not pay the money to Flynn as the agent or representative of Mrs. White, but dealt with him as a claimant of the money in his own right. Under such circumstances there could be no ratification. Ratification is a branch of the law of agency, and cannot be held to have occurred unless there is a principal, and an act assumed to have been done by some one in his name or on his behalf. (Story on Agency, § 251; Farmers' Loan and Trust Co. v.Walworth, 1 N.Y. 433)

There were, consequently, no concurrent remedies and no occasion for an election by the plaintiff.

All concur with EARL, J., except RUGER, Ch. J., dissenting.

Judgment reversed.