King v. Minnerly

Judgment and order reversed, and the 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 wasinot 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 lien. He must be deemed, therefore, to have waived any right to proceed against the principal. (Matter of Bateman, 7 Misc. Rep. 633; affd., 145 N. Y. 623; Tuthill v. Wilson, 90 id. 423.) Jenks, P. J., Burr, Thomas and Rich, JJ., concurred; Hirsehberg, J., dissented.