182 A.D. 500 | N.Y. App. Div. | 1918
This is an appeal from a judgment in favor of the defendant entered upon a dismissal of the complaint. The action is one to recover for materials and work, consisting of filing cabinets, trays, embossed plates, addressing wrappers, and filing incidental to the' addressing and mailing of a magazine called All Package Weekly which was devoted to the exploitation of defendant’s business. The materials were furnished and the work was done under a contract between plaintiff and defendant’s alleged agent, the McAtamney Company. It is undisputed that this material and work was furnished by plaintiff to the McAtamney Company wholly in connection with the All Package Weekly and that they were of the reasonable value sued for. Originally the McAtamney Company was a party defendant also, as this was the company from which the plaintiff received its orders and to which plaintiff originally sent its bills. Until April, 1916, plaintiff had no knowledge that the All-Package Company was the McAtamney Company’s principal. Plaintiff first obtained this knowledge from filed court papers in an action wherein the All-Package Company had McAtamney arrested for converting sums paid by it to the McAtamney Company as agent for other work and materials ordered by McAtamney for the same general purpose as this work was ordered. On the trial the plaintiff discontinued as to the McAtamney Company. The evidence
Respondent’s contention that the act of appellant in suing both the agent and the principal constituted an election to look to the agent is unfounded. (Tew v. Wolfsohn, 77 App. Div. 454; affd., 174 N. Y. 272.) The contract in Tuthill v. Wilson (90 N. Y. 423), to which attention is called, was under seal. The claim of variance between the pleading and proof is unsubstantial, especially in the state of the record, where the complaint was dismissed at the conclusion of plaintiff’s case on the ground that no cause of action had been made out because there was no proof of agency.
The judgment and order should be reversed and a new trial ordered, with costs to appellant to abide the event.
Clarke, P. J., Laughlin, Dowling and Smith, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.