
    Henry Robertson, Respondent, v. Heights Flint Co., Inc., and Another, Appellants.
    Supreme Court, Appellate Term, First Department,
    April 12, 1926.
    Principal and agent — action cannot be maintained against agent for money he has properly paid principal — dissolution of corporation seller before delivery date is not anticipatory breach.
    An action cannot be maintained against an agent of a disclosed principal to recover moneys which he had properly paid to his principal under the terms of the contract.
    The mere fact that the corporation seller is dissolved before the delivery date of goods sold does not constitute an anticipatory breach of the contract.
    Appeal by defendants from a judgment of the Municipal Court, Borough of Bronx, Second District, entered in favor of the plaintiff against both defendants.
    
      Goldstein & Goldstein [Arthur N. Seiff of counsel], for the appellants.
    
      Strongman & Ward [Henry A. Strongman of counsel], for the respondent. __
   Per Curiam.

The individual defendant having acted as agent of the corporate defendant, and the moneys paid having been placed in the custody of that defendant, in accordance with the terms of the contract, no cause of action was made out against the defendant Seiff.

The fact that the corporate seller of the machine was dissolved and its selling agency canceled prior to the ultimate date, May 1, 1925, when plaintiff could have demanded delivery of the car which he had purchased from the corporation in November, 1924, did not as matter of law prevent delivery of the car in accordance with plaintiff’s contract, and the evidence does not establish a breach of the contract by the seller.

Judgment reversed, with thirty dollars costs, and complaint dismissed on the merits as against both defendants, with costs.

All concur; present, Bijur, Ltdon and Levy, JJ.  