#### Anna Wiehle, Appellant, *v.*Evelyn Safford, Respondent.

(Supreme Court, Appellate Term,

May, 1899.)

Principal atad agent—Undisclosed principal may enforce a contract not under seal.

A contract for work, not executed under seal nor Involving any ? special skill in doing the work, made by and with an agent In his. own name, but for an undisclosed principal, may be enforced by the, latter in her own name.

Appeal from a judgment in favor of the defendant, rendered in the Municipal Court of the city of Mew York, borough of Manhattan, third district.

Henry Hoyt, for appellant.

Ambrose H. Purdy, for respondent.

Leventritt, J.

The plaintiff, engaged in the upholstery business, learned that the defendant desired to have certain curtains repaired and sent her husband, Rhqinhold Wiehle, who was in her employ to solicit the order. . He called at the defendant’s residence and introduced himself by presenting a card upon which áppeared *“*A. Wiehle.” The defendant supposed this stood for his name, she being unacquainted either with -him or the plaintiff. Rheinkold Wiehle did not disclose his agency, merely stating that he was the man recommended to do the work which he understood she required. -The curtains were delivered to- him and taken to the plaintiff’s place of business. The work was performed and the curtains were then returned. The defendant expressed satisfaction with the workmanship and gave an additional -order. Payment for the first order being demanded, it was refused on the ground -that the charges, were excessive. Thereupon this suit was instituted for the value of the labor performed and materials furnished. The parties to this action never met. The justice dismissed the tiómplaint, for the reason that it appeared that “ the defendant intended and believed she was dealing with Rheinhold Wiehle, and not with the plaintiff. That the defendant has a right to determine with whom she will deal, and that if the plaintiff -permits her *563husband while engaged in the transaction of her business to hold himself out as the principal she is estopped from denying it at the expense of a party who relies on such representation.” This was error. Under the circumstances disclosed the plaintiff was entitled'to maintain the action, and her rights were unaffected'by the act of her husband, or by the fact that she remained unknown to the defendant. The rule has long been'settled that where a contract, not under seal,, is made with an agent in his own name, for an undisclosed principal, whether' he describes himself as agent or not,’ either may sue upon it; and the principal may enforce in his own name any rights -.acquired by his agent in a course of dealing for him. Taintor v. Prendergast, 3 Hill, 72; Nicoll v. Burke, 78 N. Y. 580, at p. 584; Ludwig v. Gillespie, 105 N. Y. 653. A different rule prevails in a case of a sealed instrument. Briggs v. Partridge, 64 N. Y. 357.

The evidence in the case at bar does not warrant the conclusion' that the contract was one for the personal service of Rheinhold Wiehle, nor that his learning, skill or special knowledge were contracted for or induced the agreement. While in such cases, as a party has the right to select with whom he will contract, and as it may be of importance who performs his work, the rule is that a stranger cannot be thrust upon him without his consent. FTo such special circumstances obtain in this cáse and the undisclosed principal is not precluded from availing herself of her agent’s agreement. . The judgment must be reversed.

Fbeedmaet, P. J., and MaoLeaet, J., concur.

judgment reversed and new trial ordered, with costs to appellant to abide event.