Davis v. Lynch

31 Misc. 724, 65 N.Y.S. 225

Opinion

O’Gormah, J.

Although the written contract in question was 'signed by George M. Lynch, there is sufficient in plaintiffs proofs to justify the fin fling that George M Lynch was at the time acting as the defendant’s agent, and was so regarded by both parties. It was, therefore, error to grant the defendant’s motion to dismiss the complaint.

If an agent, possessing due authority, makes a contract in his own name, his principal, whether known or unknown, may be sued thereon, unless from the attendant circumstances it is the clear intent of the parties that exclusive credit is given to the agent, and that no resort shall in any event be had against the principal. Story Agency, § 160a; Coleman v. First Nat. Bank, 53 N. Y. 393; Hall v. Lauderdale, 46 id. 70. We are aware that a contrary rule was declared in Matter of Bateman, 7 Misc. Rep. 633, but the statement of the law there made is not in harmony with the authorities. Although that case was affirmed by the Court of Appeals, the judgment was upheld on other grounds.

Judgment reversed-and new trial ordered, with costs to appellant to abide the event.

Beekman, P. J., and Giegerich, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.