Majority
p. 1126KING, Respondent, v. MINNERLY, Appellant. (Supreme Court, Appellate Division, Second Department. April 30, 1913.)
Headnote
Action by John E. King against "Anna P. Minnerly.Judgment and order reversed, and motion to dismiss the complaint, made at the close of the entire case, granted, and judgment directed in favor of defendant accordingly, with costs and disbursements in this court and in the court below, upon the ground that, if the evidence warranted a finding by the jury that Peterson acted as the agent of defendant in the purchase of goods, he was not the agent of an undisclosed principal, but such principal was known to plaintiff’s assignor at the time the goods were purchased, and he chose thereafter to make a contract with the agent directly, and to hold him solely responsible therefor, when he filed the notice of mechanic’s
p. 1127
lien. He must be deemed, therefore, to have waived any right to proceed against the principal. Matter of Bateman, 7 Misc. Hep. 633, 28 N. Y. Supp. 36 , affirmed 145 N. Y. 623 , 40 N. B. 10; Tuthill. v. Wilson, 90 N. Y. 423 .
HIRSCHBERG, J.. dissents.
Cases cited
- In re the Assignment of Bateman 145 N. Y. 623 p. 1127
- Tuthill v. Wilson 90 N. Y. 423 p. 1127