81 A.D.2d 960 | N.Y. App. Div. | 1981
— Appeal from a judgment of the Supreme Court in favor of defendants, entered September 3, 1980 in Tompkins County, upon a decision of the court at a Trial Term, without a jury. As a result of discussions between plaintiff and defendant Zifchock early in August of 1977, an oral contract resulted pursuant to which plaintiff, a general contractor, was to renovate certain commercial property for defendants in return for which plaintiff was to receive his costs plus a fixed percentage. When the construction was later completed in January of 1978, however, there remained owing to plaintiff on the project a balance which he was unable to collect from defendants despite his repeated attempts to do so. Accordingly, he instituted the present action wherein he seeks to recover damages of $3,849 plus interest for his work and services. In response, defendants deny any individual liability to plaintiff and maintain that plaintiff’s only recourse is to proceed against a presently defunct corporation, East Hill Foods, Inc., which defendants previously formed on July 7, 1977. After a nonjury trial of the action, the Trial Judge granted defendants’ motion to dismiss the complaint based upon plaintiff’s alleged failure to state a cause of action against defendants, and this appeal ensued. We hold that the judgment of Trial Term should be reversed. According to the testimony of both plaintiff and defendant Zifchock at the trial, plaintiff was never informed by defendants that they had entered into the subject contract on behalf of East Hill Foods, Inc., until the contracted renovation work had been completed and plaintiff sought payment from defendants of the balance remaining due on the contract. Under these circumstances, defendants are clearly liable to plaintiff on the contract either as principals or as agents of an undisclosed