Spaeth v. De Witt

123 N.Y.S. 195

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.