Day admits on this trial that he had no express authority from plaintiff or her husband to pay over the money to Fennelly, nor does it appear that Fennelly had authority from plaintiff to receive it. No such authority should be implied. Day’s admission removes the essential basis of our former decision and brings the case within the rule of Graves v. Mumford (26 Barb. 94), Johnstone v. Horowitz (139 App. Div. 800) and Yeoman v. McClenahan (190 N. Y. 121).
Judgment affirmed, with costs.