It is not necessary to allow an appeal to the court of appeals for the purpose of obtaining the views of that court as to whether the fact that a man is behind the counter in a store, apparently doing the work of a clerk in the regular course of business, is not evidence that that man is in the employ of the owner of the store. There can be no doubt as to the opinion of the court of appeals on that subject. Leslie v. Insurance Co., 63 N. Y. 27; Svenson v. Steam-Ship Co., 57 N. Y. 108. The district court, and the former general term of this court, were of the ppinion that the inference to be drawn from the presence of Warschofsky behind the counter of Mrs. Frankel’s store (which, for aught that appears to the contrary, was without the knowledge or consent of Mrs. Frankel, and merely,a momentary and accidental occurrence) was not sufficient to overthrow Mrs. Frankel’s denial that she ever purchased the goods, or that she ever gave to any one authority to receive them. It was also proved that Mrs. Frankel refused to take the goods when they were tendered to her, and that Warschofsky signed the receipt to the express company in his own name, and not in the name of Mrs. Frankel; showing that he did not profess to act as her agent. It was not that no force or consideration was given to the presumption arising from the presence of Warschofsky behind the counter of Mrs. Frankel’s store, but for the reason that the presumption was rebutted and overcome, that judgment against the express company was given. Leave to go to the court of appeals denied.