Burns Bros. v. Royal Bank ( 1911 )

BIJUR, J.

This case was tried on an agreed state of facts, from which it appears that plaintiffs furnished coal for use in a building; that defendant was the assignee of the rents of the building, such assignment having been made as security for a loan; that the defendant authorized the ¿Etna Bond & Realty Company to collect the rents, and directed it, if necessary, to purchase coal out of the rents.

Plaintiff, who had dealt with the ¿Etna Company previously, and had sold it coal for other buildings for which the ¿Etna Company had been agents, sold, delivered, and charged the coal involved in this appeal to the ¿Etna Company and sent the bill for the same to the ¿Etna Company. Suit is brought against the defendant as the actual or discovered principal; but it seems quite apparent that exclusive credit in this case was given to the ¿Etna Company, and that, under such circumstances, the principal, whether known or unknown at the time, cannot be held. See Davis v. Lynch, 31 Misc. Rep. 724, 65 N. Y. Supp. 225, and cases therein cited.

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

SLAB UR Y, J., concurs. LEHMAN, J., concurs in the result.