
    Donato Pizzutielle, Appellant, v. Robert Graham, Respondent.
    (Supreme Court, Appellate Term,
    November, 1907.)
    Sales—Remedies of seller — Action for price — Defenses — Misunderstanding as to identity of seller.
    Where, in an action brought to recover for certain bluestone to be used in defendant’s building then in process of erection, the plaintiff’s evidence that he alone was the owner of the stone is
    ' unchallenged and the testimony of the defendant is that he thought or supposed he was dealing with plaintiff as an officer of a corporation because of prior transactions with it, plaintiff is entitled to recover.
    Appeal by plaintiff from a judgment of the Municipal Court of the city of Sew York, second district, borough of the Bronx, in favor of the defendant, with ten ..dollars costs'.
    Milton Mayer (Samuel M. Fischer, of counsel), for appellant.
    John B. Quintín, for respondent.
   Erlanger, J.

The action was brought to recover for goods sold and delivered. The answer contains a general denial. The plaintiff in his behalf testified that he sold to the defendant certain bluestone to be used in the latter’s building then in process of erection. The defendant admits that blue-stone was used in his building, but testified that he thought when the contract of purchase was made that he was dealing with the plaintiff as an officer of a corporation known as the Borough Out Stone Company,” and not as an individual, and that he supposed that the bluestone delivered came from such company. It appears that shortly before the agreement for the bluestone in suit was made, a written contract was entered into by defendant.with the said company whereby it agreed to furnish to him certain limestone and bluestone steps, coping and base, etc. This agreement on the part of the company was signed “ The Borough Cut Stone Company, D. Pizzutielle, treas.” The defendant contends that said company did not abide by its agreement, and by reason thereof he has some claim against it. Plaintiff states that when, in October, 1904, he sold to the defendant the stone for which this action was brought he was the sole owner of it and-that the corporation was in no way interested in it; that he informed the defendant of the fact. A brother of plaintiff corroborates the testimony so given. The defendant denied that any such conversation occurred. But nowhere in the record is plaintiff’s evidence contradicted that he and not the corporation owned the stone. Defendant throughout his evidence-declared that he thought or supposed because of his prior dealing with plaintiff that he was purchasing the additional bluestone from the corporation. The trial court concluded from the evidence that the plaintiff did not disclose his ownership and, entertaining that view, decided that he could not maintain this actipn. The record shows the following colloquy between plaintiff’s counsel and the court: Plaintiff’s counsel: As I understand your Honor do.es not want any testiniony as to delivery, or the quantity delivered. The Court: Ho, I think there was never any contract with thes'ti people. Plaintiff’s counsel: Your Honor is going to decide the question as to ■yhether or not the contract was made with the plaintiff or with the Borough Cut Stone Co. ? The Court: Exactly. I will give judgment for the defendant, on the ground that there was no contract between these parties Pizzutielle and Graham.' If there was any contract at all, it was between Graham and the Borough Cut Stone Company.” A motion was then made for a new trial and denied. The court disregarded the unchallenged evidence' of plaintiff that 'he alone was the owner of the stone delivered. The testimony of the defendant that he thought or supposed he was dealing with the plaintiff a£ an officer of the corporation because of his prior transactions with such corporation, is neither controlling nor was it competent. He obtained the property, or at least part of it, as appears by his admission; and he cannot hold it, and yet refuse to pay for it. If he is not liable to plaintiff, then there is no liability to anyone; for it clearly appears that the corporation had , nothing at all to do with the transaction. Even if it be accepted as true, that plaintiff did not at the time of the sale inform defendant of his ownership, plaintiff had the right, nevertheless, to sue and recover for'the value of the goods sold. If defendant has a claim against the corporation of which plaintiff is an officer, he can proceed against it; but he cannot defeat the claim in this action merely because of that fact.

The judgment for defendant was erroneously awarded and must be reversed and a new trial ordered.

Gilbersleeve and Leventritt, JJ., concur.

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