On January 18, 1909, G-oeller, Shaffer & Eisler, a firm of lawyers in the city of New York, wrote a letter to the defendants, as follows: “Gentlemen.— Kindly make an appraisal of the property of Dr. J. W. Gibbs situated in Room 618 of the Hotel Navarre. Dr. Gibbs is indebted to us to the extent of $1530.07 and has agreed to give us a chattel mortgage on his furniture and effects sufficient to cover this. You are to give us an appraisal of a sufficient amount in your judgment to secure this indebtedness of Dr. Gibbs.” At the time this letter was written there was no statement to the defendant that this firm was acting for plaintiff or in a representative capacity. In reply to this letter, on January 20, 1909, the defendant addressed a letter to the law firm stating that according to their request they had made an appraisal of the property of Dr. J. W. Gibbs situated in room 618 of the Hotel Navarre, “the total amount of which is sufficient to cover his indebtedness to you.” The complaint alleged that Goeller, Shaffer & Eisler were the attorneys, agents and representatives of the plaintiff; that the said Gibbs was indebted to the plaintiff in the sum of $1,590, and was the owner of certain furniture, bric-a-brac, paintings and other personal property situated in the apartment occupied by the said Gibbs in the Hotel Navarre; that the plaintiff duly informed the defendant of the facts alleged, and entered into an agreement with defendant whereby the defendant agreed to examine and appraise the personal property and to report to the plaintiff the true market value thereof; that on January 19, 1909, the defendant, in pursuance of the agreement, proceeded to appraise the said personal property, but wholly failed to exercise the usual and ordinary care, skill, diligence, prudence, ability and industry used by appraisers- in such matters in making the said appraisal, and negligently to the damage of the plaintiff, selected and appraised only a small part of the said personal property, to wit, the articles set forth in a schedule annexed to the complaint, and reported the value thereof to the plaintiff as $3,922, whereas in fact the same was worth only the sum of $170.85; that the plaintiff, relying upon the appraisal and. report made by the defendant, and believing that the defendant had used, on behalf of the plaintiff, the usual and ordinary *800care, diligence and prudence used by appraisers in such matters, and that the aforesaid selection and appraisal made by the defendant was carefully and skillfully made, and that the personal property selected by the defendant was of the value of $3,922, duly accepted the offer made by Gibbs and refrained from bringing suit against him, and accepted a chattel mortgage on the property appraised, and in pursuance of the said offer the plaintiff ‘did discharge and release the said Gibbs from the said indebtedness and obligation to the- plaintiff; that the plaintiff subsequently obtained a judgment against Mary E. Gibbs, who gave the chattel mortgage, the wife of Dr. J. W. Gibbs, but had been unable to collect the amount of the judgment on execution; and that if defendant had duly, prudently, diligently, carefully, and in accordance with the usual custom and course of business of appraisers, performed its duty arising under and by virtue of the agreement, and had so made the . selection of sufficient' of the personal property of the said Gibbs amply to secure plaintiff for the payment of the indebtedness, which defendant had agreed to do, the plaintiff would have been amply secured for the payment of the said indebtedness, and would have realized and collected the full amount of said indebtedness, secured by said mortgage; but that by reason of the aforesaid negligent failure of the defendant to perform its duty as aforesaid the plaintiff had suffered damage in the sum of $1,453.03.
The action, therefore, is to recover for the damages sustained by plaintiff by reason of the unskillful performance of the duty that defendant undertook to perform under its employment by a firm of lawyers, and the question squarely presented is whether plaintiff, who made no contract with the defendant and who had not employed the defendant to perform any service for it, can recover for the negligent performance of the duty which defendant undertook to perform for this firm of •lawyers. The action is based upon negligence, i. e., negligent performance of a duty and not for a breach of a contract. In Savings Bank v. Ward (100 U. S. 195) the question was presented whether a lawyer was responsible to a party who had not employed him, but who relied upon a certificate he had given to another person that such third person had good title *801to real property which the third party had pledged to plaintiff as security for a loan of money. The court, in deciding that the lawyer was not responsible, said: “ It is not pretended by the plaintiffs that they ever employed the defendant to examine the title to the lot, and it appears that the report was made at the sole request of the claimant of the lot, without any knowledge on the part of the defendant as to the purpose for which it was obtained. All that is conceded by the plaintiffs; but they gave evidence to show that the claimant of the lot presented the certificate to certain brokers and employed them to negotiate a loan upon the property in his favor * * *. on the faith of that certificate.” The court, adopting the principle established in Fish v. Kelly (17 C. B. [N. S.] 194), held that the attorney was not liable, it there being held that there must be privity of contract between the parties to justify a recovery., and further citing the opinion of Beasley, Ch. J., in Kahl v. Love (37 N. J. L. 5), that “ The limit of the doctrine relating to actionable negligence is that the person occasioning the loss must owe a duty, arising from, contract or otherwise, to the person sustaining such loss.” In conclusion the court said: “ Suffice it to say these parties never met, and there was no communication of any kind between the defendant and the brokers, or the lenders of the money. Nothing of the kind is pretended, the only suggestion in that direction being that it may be held that the applicant for the loan, when he employed the defendant, may be regarded as the agent of the plaintiffs. Such suggestion being entirely without evidence to support it, is [entitled] to no weight, especially as' it appears that the principal certificate was procured several days before any interview upon the subject of the loan took, place between the brokers and the plaintiffs.”
I do not find that the principle established in that case has been questioned in this State, and although, of course, it is conceded that an undisclosed principal can "maintain an action on a contract not under seal, made on his behalf, although the principal is not disclosed, there are exceptions to that rule, to which attention was called in Moore v. Vulcanite Portland Cement Co. (121 App. Div. 667), which was generally based *802upon the principle stated hy Hr.'Justice Gray ■ in Arkansas Smelting Co. v. Belden Co. (127 U. S. 379): “ Every one has a right to select and determine with whom he will .contract, and cannot have another person thrust upon him without his consent. In the familiar phrase of Lord Denman, ‘ You have [a] right to the benefit you [contemplate] from the character, credit and substance of the party with whom you contract.” (Humble v. Hunter, 12 Q. B. [A. & E. (N. S.)] 310.) Here the defendant was employed by a firm of lawyers to make an estimate or appraisal of certain personal property for them; the defendant had- no contract relation with the plaintiff, did not undertake to work for the plaintiff in any capacity, gave no certificate to the plaintiff as to the appraisal; and the person, with whom defendant did contract, has suffered no damage by reason of any error or negligence of the defendant. Because the plaintiff was willing to rely upon the appraisal given by the defendant, with whom it had no contract relation, does not justify the plaintiff in holding the defendant liable for negligence-or the breach of -an implied contract with defendant’s- employers, that they would exercise reasonable care and skill in making the appraisal.
I, therefore, think this judgment should be affirmed.
Judgment reversed and new trial ordered,- with costs to appellant to abide event. Order to be settled on notice.