Spaeth v. De Witt

Appellate Terms of the Supreme Court of New York

Spaeth v. De Witt

123 N.Y.S. 195

CourtAppellate Terms of the Supreme Court of New York

DecidedMay 24, 1910

StatusPublished

Cited by1 cases

This text of 123 N.Y.S. 195 (Spaeth v. De Witt) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Spaeth v. De Witt, 123 N.Y.S. 195 (N.Y. Ct. App. 1910).

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Opinion

SEABURY, J.

Plaintiff sold goods on credit to the husband of the defendant. He sued the defendant’s husband, and recovered judgment. In proceedings supplementary to execution upon said judgment, the plaintiff ascertained that the defendant w,as the principal, and that in purchasing the goods her husband acted merely as her agent. The judgment against the defendant’s husband has not been paid, although plaintiff filed a satisfaction piece of the judgment “for the purpose of bringing this action.”

It clearly appears that the defendant was the undisclosed principal, for whom her husband acted as agent. The fact that she was the principal was not disclosed until judgment had been recovered against the agent. This judgment not having been paid, and the principal now having been disclosed, the plaintiff may maintain an action against her for the goods which were in fact sold to her. The doctrine of election of remedies has no application to this case. Tew v. Wolfsohn, 77 App. Div. 454, 79 N. Y. Supp. 286, and cases cited, affirmed 174 N. Y. 272, 66 N. E. 934.

Judgment reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.

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SEABURY, J.

Plaintiff sold goods on credit to the husband of the defendant. He sued the defendant’s husband, and recovered judgment. In proceedings supplementary to execution upon said judgment, the plaintiff ascertained that the defendant w,as the principal, and that in purchasing the goods her husband acted merely as her agent. The judgment against the defendant’s husband has not been paid, although plaintiff filed a satisfaction piece of the judgment “for the purpose of bringing this action.”

It clearly appears that the defendant was the undisclosed principal, for whom her husband acted as agent. The fact that she was the principal was not disclosed until judgment had been recovered against the agent. This judgment not having been paid, and the principal now having been disclosed, the plaintiff may maintain an action against her for the goods which were in fact sold to her. The doctrine of election of remedies has no application to this case. Tew v. Wolfsohn, 77 App. Div. 454, 79 N. Y. Supp. 286, and cases cited, affirmed 174 N. Y. 272, 66 N. E. 934.

Judgment reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.

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Bluebook (online)

123 N.Y.S. 195, Counsel Stack Legal Research, https://law.counselstack.com/opinion/spaeth-v-de-witt-nyappterm-1910.

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