8 N.Y.S. 916 | N.Y. Sup. Ct. | 1890
This action was brought for alleged extra work and materials furnished in and about the erection of a building in the city of IsTew York. The complaint alleges that the defendant was a married woman', possessed of a separate estate, and owner of the premises upon which the building was erected; that in April, 1883, the plaintiff and defendant made a contract in writing whereby the plaintiff agreed to do all the mason work for a certain theater building then being erected by defendant in the city of Mew York, after certain plans and specifications made for the same, and specifically referred to in said contract, which contract the plaintiff subsequently carried out iú every respect; and that while engaged in the performance of said contract, and at divers times within certain dates mentioned, the plaintiff performed for the defendant, at her special instance and request, certain extra mason work, and furnished to her, at like request, certain extra materials for the said theater building, not provided for in said plans and specifications, and not included in or provided to be done or furnished by said contract, the reasonable value of which the defendant agreed to pay; that the defendant caused the erection of said building by Thomas J. McCahill, her agent in that behalf, and that said contract was made by the defendant through her said agent, Thomas J. McCahill, and defendant caused the performance and furnishing of said extra work and materials through said Thomas J. McCahill, her agent in that behalf. The complaint further alleged that, in accordance with the provisions of the contract, the plaintiff offered to arbitrate the question of extra work and materials, but defendant refused and neglected to accept said
That in the case of a sealed contract a recovery can only be had against the person executing the contract seems to be thoroughly well established in the case of Shaefer v. Henkel, 75 N. Y. 378, where it is held that where it distinctly appears from the instrument executed that the seal affixed is the seal of the person subscribing, even where it designates himself as agent, and not the seal of the principal, the former only is the real party who can maintain an action on the same; that he alone enters into the covenants, and is liable