
    John J. Shesler, Respondent, v. Jane A. Patton, Appellant.
    Second Department,
    July 24, 1906.
    Principal and agent — when bankrupt repurchasing his own claim cannot sue undisclosed principal thereon — evidence insufficient to establish agency — declarations of agent—reading from memorandum.
    A bankrupt, who among his assets scheduled a claim against a specific person, and who after his discharge buys the claim from a third person who purchased it on a sale by the trustee, cannot thereafter enforce the claim against an
    . undisclosed principal not named as the debtor. This, because the right of action sold by the trustee was limited to the debtor named, and the bankrupt repurchasing the claim hold's under the assignment and not in his original right.
    One who is not the owner of property upon which improvements are being made under an express contract with the father of the real owner cannot be held for the value of the whole work as undisclosed” principal, because she was the tenant, was present when the work was being done, and directed some of the minor changes on the theory that the work should suit her because she lived in the house. It seems, however, that she may be personally liable for the value of the extras ordered by her. •
    
      Such agency cannot be established by the mere declarations of the alleged agent not made in the principal’s presence or communicated to her, even though she was present when the work was being done, if it is clear that she was not the owner of the building.
    It is error to allow a witness to read from a memorandum of extra work done by him, the amount of which is in dispute, without laying a proper foundation for such evidence.
    The declarations of an alleged agent as to the extra work done for an undisclosed principal only become competent when the agency is established, and the reception of the evidence should be conditioned on such proof, in the absence of which the declarations cannot be made the basis of a judgment against the alleged principal.
    Appeal by the defendant, Jane A. Patton, from a judgment of the City Court of Yonkers in favor of the plaintiff, entered in the office of the clerk of said court on the 26th day of May, 1905, upon the decision of the court.
    
      Andrew F. Murray [Joseph Martin with him on the brief], for the appellant.
    
      Junius Pendleton Wilson [Theodore E. Terrell with him on the brief], for the respondent.
   Rich, J.:

In March, 1901, plaintiff had a conversation with David H. Patton (defendant’s husband) relative to certain plumbing work and materials desired by the latter for a house in process of repair, owned by his daughter, which led to a written proposal, addressed to Patton and accepted by him, to do the work and furnish the materials in accordance with written specifications accompanying the proposal for the sum of $820. As the work progressed Patton paid plaintiff $700 to apply on his contract, leaving unpaid, upon the completion of the work, on the contract price and for extra work, $279.09. This balance was charged upon plaintiff’s books to David H. Patton, and no charge was at any time made against the defendant. The plaintiff subsequently went into bankruptcy, and on May 27, 1903, filed his schedules, in which he listed as an asset the indebtedness of Patton for the balance unpaid on his contract of $279.09. The trustee in bankruptcy sold-this claim, with others, at public auction, and it was purchased by one Ivers, who subsequently sold it to the plaintiff for $15. Prior to the commencement of this action the plaintiff obtained his discharge in bankruptcy, and a year later brought this action against the defendant, as the undisclosed principal of her husband, to recover the unpaid balance. The issues were tried in the City Court of Yonkers, before the city judge without a jury, and resulted in a judgment for the plaintiff, from which this appeal is taken.

Whatever rights or causes of action existed against any and all persons, for the recovery of the balance unpaid plaintiff under his contract with David BT. Patton, vested in the trustee in the bankruptcy proceedings by operation of law, and he has no right of action for the recovery of such balance except such as he acquired by the purchase of the claim from Ivers; so that the first question requiring consideration is whether or not such purchase vested in him a cause of action against the defendant. This question must be answered in the negative. The schedules of the bankrupt contained no claim against the defendant. No claim against her was attempted to be sold by the trustee. He sold a claim against David H. Patton, and the light of action attaching to such claim was limited to such debtor. It follows that the only cause of action possessed by the plaintiff is against David II. Patton, and neither he nor his predecessor in title could maintain an action against the defendant, as an undisclosed principal, to recover the debt owing by David H. Patton, under the circumstances disclosed by the record in this case. Upon the merits the plaintiff failed to establish a cause of action against the defendant, the evidence being insufficient to sustain his contention that David II. Patton, in making the contract in question, was acting as her agent. The defendant did not own the property. She was a tenant in the building at a monthly rental. The plaintiff’s evidence to establish the agency of the husband rests, first, upon his alleged declarations, not made in the presence of the defendant and not shown to have ever been communicated to her; second, her statements made when she directed some minor changes, to the effect that she was' the one who was going to live in the house/ and she wanted the work done right and to her satisfaction ; and/* third, the fact that she was present when some of the work was being done.

Agency cannot be established by the mere declarations of the alleged agent, and proof that the1 alleged principal was present when the work was being done, where it appears without contradiction that she was not the owner of the property in process of repair, will not change the well-settled rule in this respect. The learned city judge cites Whipple v. Webb (44 Misc. Rep. 332) to sustain his conclusion of the defendant’s liability, entirely overlooking the essential elements that the defendant wife in that case was the owner of the property and the husband when purchasing the materials did not state to whom they were to be charged. The record in this action contains no evidence that any declaration of her husband was made in her presence or brought to her knowledge; that she made any payments for the work, or that it was her money that was used for that purpose by her husband, or that she ever told the defendant that she owned the property, or that her husband was her agent; and she testified that lie was never her agent in any business dealings she ever had. While the evidence is sufficient to warrant a recovery against her for the value of extras ordered personally by her, in favor of a plaintiff entitled to enforce her liability as an undisclosed principal, it lacks the necessary elements to sustain the judgment recovered against her in this action.

Reversible error was also committed by the city judge in the admission of evidence, the plaintiff being permitted, over the objection of the defendant, to read from a memorandum its contents consisting of the items of the extra work which he claimed to have performed, in the entire absence of a proper foundation being laid rendering such evidence competent. Such evidence became competent only when the agency was established by competent testimony, and its inception should have been conditioned on such proof, in the absence of which such declarations remained incompetent, and could not be considered and made the basis of a judgment against the principal.

For these reasons the judgment must be reversed and a new trial ordered, costs to abide the event.

Jenks and Miller, JJ., concurred; Hooker, J., concurred in the last two grounds stated in the opinion.

Judgment of thé City Court of Yonkers reversed and new trial ordered, costs to abide the event.  