
    William C. Hespe et al., Respondents, v. Edward B. Wyman, Appellant.
    (Supreme Court, Appellate Term,
    February, 1896.)
    Principal and agent — Liability of agent.
    One who deals with an agent, without knowledge of his agency, is not restricted to an action against the concealed principal when discovered. .
    Appeal from judgment of Second Judicial District Court in favor of the plaintiff. -
    Patrick J. O’Beirne, for respondents.
    George L. Hoffman, for appellant.
   Bischoff, J.

This action was brought to recover -for work, labor and services and materials furnished at the defendant’s instance and request, and a recovery of $72.50 -was had. • •

There can be no question as to the value of the services in suit, since the defendant himself admitted in court that their value was in the amount above stated, but the appeal is based upon the claim that the defendant, in making the contract for the work, acted as agent for a corporation and that the weight of the evidence is in his favor upon this defense.

A consideration of the record makes it apparent, however, that there was merely a conflict of evidence touching this .point, • and the probabilities are-not ¡against,the plaintiffs’ positive evidence that the defendant acted as an individual, pledging his own credit* in the course of the transaction.

It may be, as contended, that the plaintiffs had reason to .be cognizant of the claim that the defendant was acting as agent, but this was subsequent to the contract and performance, if at all, and -the plaintiffs were not restricted to an action against the concealed principal when finally discovered.

The question of the weight of evidence must be resolved impartially by the appellate court, and cannot be determined merely as a reflection of the appellant’s reliance upon the value of his allegations 'and proofs.

Judgment affirmed, with costs.

McAdam, J., concurs.

Judgment affirmed, with costs.-  