(dissenting):
This action is brought by plaintiffs against the defendant to recover for work done upon some furniture. The order for the work was given by defendant’s wife prior to then marriage. It appears that judgment was recovered against Mrs. Baynes by the plaintiffs in June, 1922. Plaintiffs now sue Mr. Baynes as the disclosed principal, and the complaint was dismissed at the close of the plaintiffs’ case on the ground that upon the authority of Georgi v. Texas Co. (225 N. Y. 410) the suit against Mrs. Baynes was a conclusive election to hold her and not the disclosed principal. I do not understand it to be claimed by the defendant that Mrs. Baynes at the time of ordering these goods disclosed the fact that *116she was acting on behalf of the present defendant. At all events, I can find no such testimony in the record. In the Georgi case not only was the agency disclosed in the answer of the agent, but the plaintiff was furnished with the agent’s letter of authority and made demand upon the defendant, the principal, for the payment of the debt. That case is no authority for the proposition involved in the present appeal, namely, that the mere statement, if any, by the agent after the making of the contract that someone else was the principal is sufficient basis for inferring a conclusive election by suit against the agent. Nowhere has any evidence developed in the present case which even approximates such proof or demonstration to the plaintiffs that defendant was the principal in the transaction as would require them to give it any more attention than any other rumor or hearsay evidence. Surely no conclusive presumption of an election can be predicated upon anything other than what is mentioned in the Georgi case, namely, knowledge of the fads.
There is also some claim that Mrs. Baynes, called as a witness by the plaintiffs, gave some testimony to the effect that she had at the outset disclosed her agency. As said above, I cannot find it, but if she did, it is conceded that she also gave testimony to the contrary effect, and plaintiffs denied that they had been apprised of that fact. Were that issue presented by competent evidence, however, the contradictions of plaintiffs’ witness, both by her own testimony and of theirs, would leave the actual fact as an issue to be determined by the jury. (Williams v. D., L. & W. R. R. Co., 155 N. Y. 158; Odell v. Webendorfer, 60 App. Div. 460.)
In my opinion, therefore, the judgment dismissing the complaint at the conclusion of the plaintiffs’ case was erroneous and should be reversed, with costs to appellant to abide the event.
Judgment affirmed.