Dairy v. Putney

46 A.D.2d 1010, 362 N.Y.S.2d 93, 1974 N.Y. App. Div. LEXIS 3399

Opinion

Order unanimously reversed, with costs, and motion denied. Memorandum: Bennett Dairy, a partnership, alleged in its complaint that it was the undisclosed principal of Claude I. Bennett who executed a contract with defendant for defendant to erect a silo on the Bennett farm. Bennett was required to build a foundation upon which the silo could be placed. Although the foundation was built, defendant never erected the silo. Special Term incorrectly dismissed the complaint on the ground that plaintiff lacked capacity to sue. A partner is the agent of the. partnership and his acts may be adopted and enforced by the partnership ds its own (Partnership Law, § 20), and an undisclosed principal may sue on the contract of the agent (Kelly Asphalt Block Co. v. Barber Asphalt Paving Co., 211 N. Y. 68, 70; Alpert v. G. R. E. Constr. Corp., 222 App. Div. 60; Navarre Hotel & Importation Co. v. American Appraisal Co., 156 App. Div. 795). (Appeal from order of Monroe Special Term in action for damages for breach of contract.) Present.— Witmer, J_P., Moule, Cardamone, Simons and Del Vecehio, JJ.