
    Minnie A. Indelli and James Conforti, Plaintiffs, v. Pincus Lowenfeld and William Prager, Defendants.
    (Supreme Court, Kings Trial Term,
    August, 1910.)
    Principal and agent — Rights and liabilities of principal as to third person — Rights and liabilities as undisclosed principal — Liability of undisclosed principal on contract.
    Where an owner of land, after refusing to give an executory contract for the sale thereof, directs and authorizes building operations thereon and gives his express assent and approval as such operations proceed, he is liable as an undisclosed principal to one who was employed under a written contract with the proposed purchaser whom said owner had requested to go on with the work.
    Motion to set aside a verdict for plaintiffs.
    Freyer, Hyman & Jarmulowsky (Adolph Freyer, of counsel), for plaintiffs.
    Arnstein, Levy & Pfeiffer (David Leventritt & Alexander Pfeiffer, of counsel), for defendants.
   Putnam, J.

The plaintiffs are suing the defendants, who owned premises upon which plaintiffs had made excavations and laid building walls for ten apartment-houses. Plaintiffs had been employed under a written contract-executed by Mr. Abelman of the Steinm'an Realty Company, who, they claim, acted in the transaction as agent of the defendants who are now sued as undisclosed principals.

In the summer of 1906, Mr. Abelman had asked the defendants to sell this tract of land for a large building enterprise ; but, although defendants appeared to entertain the proposition, they never definitely committed themselves to the proposed sale, and finally refused to give any executory "contract therefor. After these negotiations with defendants had begun, there was evidence that the defendants and Mr. Abelman discussed fully the design of the houses proposed; that defendants requested Mr. Abelman to go ahead with the work; that they consulted and directed as to the preparation of plans, and suggested an architect, and gave instructions how the work should proceed. It was testified that defendants were informed of this written contract with plaintiffs for the excavation and mason work; also that defendants visited the premises and observed the progress of the work. In the end, defendants never parted with the title and, apparently, the negotiation for the sale proved entirely futile, although, in the meantime, the excavation had been made and a portion of the walls had been erected by the plaintiffs in ignorance of the defendants’ ownership of the property.

If the landowners thus direct and. authorize building operations to go on upon their property and give express assent and approval as such operations proceed, it seems clear that the elements of agency are shown or, at least, that- a question is raised to be submitted to the jury under proper instructions. The fact that plaintiffs during the work only knew Mr. Abel-man and the S'teinman Realty Company in the transaction does not prevent them from afterward suing the defendants when- their relations as principals have been disclosed. Good faith seems to forhid the owners of property who direct such work afterward to deny that they were primarily interested, ‘or the fact that the intermediary employed to act for them did not receive the authority conveyed by the instructions to proceed with the work. With what intent such authority and instructions were given seems a fair question upon which to take the verdict of the jury. Had a' conveyance of the land been made, even in conditional form, or an executory contract been signed, the defendants’ position would, perhaps, have been improved.

On review of the whole case, no injustice seems to have been done.

The motion to set aside the verdict (and plaintiffs’ motion for an additional allowance) is denied.

Motion denied.  