This judgment should be affirmed, with costs. The plaintiff seeks a recovery on the theory:
1. That certain oil belonging to him situated in Mexico was there converted by the defendant, and
2. That a certain contract made in Mexico between himself and a Mexican corporation binds the defendant, *Page 154 either as an undisclosed principal or because, having complete control of the Mexican corporation, the contract was in fact made with it. Whatever might be the rule in New York, there is a failure of proof on both branches of the case.
A recovery in conversion is dependent upon proof of title in or a right of possession of the goods in question. Whether the plaintiff had either under the facts before us depends upon the law of Mexico. As to what that law may be we are given no information.
For the same reason there may be no recovery on the second theory. Even in our State an undisclosed principal is not always responsible for the acts of its agents — for instance, as to contracts under seal. As to the liability of a corporation holding all the stock and dictating the action of a subsidiary there is uncertainty. At best slight shading of the facts creates possible distinctions. What may be the rule in Mexico we do not know.
Whether had such defects in the evidence been supplied there should have been a dismissal of the complaint we need not decide. As it stands the judgment is a final determination on the merits. (Civ. Prac. Act, sec. 482.) The discretion exercised below in this regard we may not disturb. If the plaintiff has any remedy by motion or otherwise, it is not here.