
    Patrick Cassidy et al., Appellants, v. Frederick Aldhous, Respondent.
    (New York Common Pleas—General Term,
    March, 1894.)
    In an action to recover the value of plumbing articles furnished to building contractors for use in defendant’s house, the amended complaint alleged that defendant had agreed to give his note on condition that plaintiffs satisfied a mechanic’s lien; that they did so and that defendant then refused to give the note. The proof showed these facts, and also that when defendant refused to give the note ho told plaintiffs to put the lien back again and that they did so. Held, that the agreement was thereby-rescinded by mutual consent, and the plaintiffs restored to their rights, and that the complaint was properly dismissed.
    Appeal by the plaintiffs from an affirmance by the General Term of the City Court of a judgment dismissing the complaint at the close of the plaintiffs’ case.
    The action was to recover the value of plumbing materials-to the amount of $540.30 from the defendant, through Pierce & Thornton, from whom it was alleged he retained the money to pay the plaintiffs and agreed to do so. The answer was a general denial. The complaint was amended by setting up an agreement of defendant to give the plaintiffs his note for $500, on condition that they satisfy a mechanic’s lien which they had filed for said materials; their compliance with the condition and his refusal to perform his agreement.
    
      Thomas G. Eimever, for appellants.
    
      W. E. Benjamin, for respondent.
   Per Curiam.

When the plaintiffs rested they had failed to prove any authority in Pierce & Thornton to purchase goods on defendant’s credit, so that their sole claim of his liability rested upon the agreement set up in the amendment to their complaint. The proof showed that defendant agreed to give a note for $500, if the plaintiffs removed their lien; that they did discharge the lien, and that defendant subsequently refused to give the note and told the plaintiffs that they might put the lien back again, which they did and filed it against his property. It thus appeared that the agreement for the note in consideration of the removal of the lien was rescinded by mutual consent and the lien restored. This disposed of the alleged cause of action under the amendment, and the complaint was properly dismissed. It is urged by appellant that defendant ratified the purchase by Pierce & Thornton by the agreement to give the $500 note, but the evidence showed that when he agreed to give the note he refrained from acknowledging any liability for the goods;

The judgment should be affirmed.

Present: Daly, Ch. J., Bischoff and Pryor, JJ.

Judgment affirmed, with costs.  