
    Thomas H. Welsh, Respondent, v. Rheinhardt & Co., Appellant.
    (Supreme Court, Appellate Term,
    July, 1897.)
    Real party in interest — Machine erected by an agent. .
    A person who agrees to erect for another a gas engine and who guarantees it and its'hotse power for the period of one year is, by virtue of his work, labor, services and guaranty, the real party in interest under the contract, and may bring an action to enforce it; and this, notwithstanding the fact, that he erected the éngine as agent for a foreign company, and that the contract contained a clause that .the engine was to remain the property of that company until it had been paid for in full and that it was not to be sold, mortgaged or removed without its en- ■ tire approval and consent.
    Walsh v. Reinhart & Co., 20 Misc. Rep. 407, affirmed.
    Appeal from an affirmance by the General Term of the City Court of a judgment in favor of plaintiff, for $1,364.13, entered upon the verdict of a jury for $1,177.23, in an action to recover for the contract price, $1,085, for setting up a gas engine on defendant’s premises. Defenses were false representations, breach of warranties and that plaintiff is not a real party in interest.
    Joseph C. Rosenbaum, for appellant.
    Franklin Pierce, for respondent.
   Daly, P. J.

Thé plaintiff made an agreement in writing with the defendant, a corporation, to furnish and erect a gas engine compíete for $1,085, the price to include a suitable brick foundation for the engine and all necessary gas, water and exhaust piping 'and plaintiff guaranteed the engine for one year against all imperfections of workmanship and material and also guaranteed the horsepower, agreeing to furnish, if needed, an additional engine. The contract also included the following clause upon which defendant bases.the defense that the plaintiff is not the real party in interest, that being the sole contention upon this appeal. It is also herein agreed and understood that the above thirty-power engine is to remain the property of the Springfield Gas Engine Go., of Springfield, Ohio, until paid for in full, and is not to be sold, mortgaged, or removed without their entire approval and consent.” This action is brought to recover the contract price above specified, and it is claimed that the Springfield Gas Engine Co. alone has the right to maintain the action as owner of the engine.

The real party in interest is the party having the sole right to enforce the contract, and the plaintiff is that party, the contract being not simply for the sale of the engine, for which plaintiff might have been regarded as acting merely as agent, but for labor and materials for which he contracted as principal, and for a collateral warranty upon which he alone is liable. H plaintiff had made the contract expressly as agent of the Springfield company he would nevertheless be entitled to' sue in his own name upon it, since he was personally bound for its fulfilment. ¡Nelson v. ¡Nixon, 13 Abb..Pr. 104. So-far as any title was vested in the Springfield company by the contract, that title depended upon the contract as a mere incident thereto and would be divested by payment as prescribed therein. If the contract with the plaintiff be satisfied no title remains in the company. ¡None of the cases cited by appellant sustains his objection to plaintiff’s recovery.

Judgment affirmed, with costs.

Bischoff and McAdam, JJ., concur.

Judgment affirmed, with costs.  