51 N.Y.S. 391 | N.Y. App. Div. | 1898
This action was begun March 15, 1897, for the .foreclosure of a mechanic’s lien, and the recovery of a judgment against the appellant for the amount of the claim. November 23, 1895, the appellant acquired the fee of two lots on the east side of Crescent avenue, in the city of Buffalo. • Her husband owned the
The materials furnished and labor performed on the two houses were done under a contract between the plaintiff and Fletcher J. Barron, the husband of Jeanette P. Barron, who owned the houses. The services rendered and goods furnished were charged against the husband in one account. December 30, 1896,—some time after all the materials had been furnished and work performed,—the plaintiff discovered that the wife owned the property, and was in fact the principal debtor, which fact the husband had concealed,' or at least had not disclosed to the plaintiff. On discovering this fact, the plaintiff had the right to hold the agent (the husband) or the undisclosed principal (the wife) liable, but could not hold both liable as principal, nor could he hold one liable for part of the demand and the other for the remaining part thereof as principal debtor. March 11, 189J, the plaintiff began an action in the supreme court against the husband for the recovery of the part of the demand for the materials and labor which had been furnished under a single contract for the two houses, separating the items which he thought were properly charged to No. 1, and bringing his action thereon.. By- this action the plaintiff elected to hold the husband liable as principal debtor, and, having made his election with full knowledge of the facts, is bound by it, and cannot maintain an action against the wife for the recovery of the remainder due upon the contract.' This action, though in form one for the foreclosure of a mechanic’s lien, in so far as it is for
The judgment must be reversed, and a new trial granted, with costs to the appellant to abide the event.