#### Joseph Hughes, Respondent, *v.*Augustus Smith, Appellant.

(Supreme Court, Appellate Term,

April, 1900.)

Contract — Plaintiff must sue the party with whom he contracted.

Where a person contracts in writing and under seal to render services to a duly organized corporation known as Augustus Smith & *270Company, he can recover against no other person or corporation, and the mere fact that the corporation had agreed with Augustus Smith individually to perform the particular work upon which the person-in question was employed affords the latter no ground for a recovery against Augustus Smith as an individual.

Appeal from a judgment rendered in favor of the plaintiff' in the Municipal Court of the city of Hew York, fourth district, borough of Manhattan.

Donnell & Smith (L. Laflin Kellogg, of counsel), for appellant.

Alden & Carpenter (Carlos C. Alden, of counsel), for respondent.

Beekmab, P. J.

The plaintiff has no cause of aetiomagainst the-defendant. He was not employed by the latter, but by the corporation Augustus Smith & Company. The contract of employment, which was in writing, expressly names Augustus Smith & Company as the employer, and is signed in the name of that corporation. There is no evidence to show that the plaintiff was-in any way whatsoever misled by the defendant with respect to his employment, nor did he have any reason whatsoever - to-suppose that he was employed by the latter rather than by the-company with which, in express terms, he had contracted.

It was contended by the plaintiff upon the trial that the corporation, although lawfully organized, was a mere dummy or-agent for the defendant in the transaction of certain portions of his business, and that Smith himself was the real party in interest. But the evidence is not sufficient to support such a claim. There was enough in the uncontradicted evidence in the case to show that the organization of the corporation was genuine,, and that it had transacted business with others than the defendant in this action. With respect to the particular work upon which the plaintiff was employed, the corporation was under an. agreement with Smith, which required it to perform a certain portion of such work and to furnish the labor therefor. This-it undertook to do, and to that end employed workmen, of whom» the plaintiff was one. As we have seen, the plaintiff in terms contracted with the company by an instrument in writing executed* *271by him under seal and naming Augustus Smith *&*Company as the employer. Here, then, was a perfectly plain agreement intelligently entered into by the plaintiff, and it is difficult to perceive upon what theory he can reasonably assert a claim for wages against the defendant for work which he has agreed to do for another and for which the latter has agreed to pay. Even assuming that in the case of a contract under seal such as this the defendant might be held liable if it were shown that he was an undisclosed principal, the corporation being merely his agent, the proofs do not warrant the conclusion that the relations between the ■ defendant and the corporation were of such a character.

There was also raised in this case a question with respect to-the constitutionality and construction of certain sections of the Labor Law, which purport to regulate the rate of wages to be paid to laborers upon any public work. The discussion of this question on the part of the counsel for the appellant is able and interesting, but in view of the fact that the question is material only upon the assumption that a contractual relation existed between the plaintiff and the defendant, what we might say upon the subject would be purely *obiter,*inasmuch as we have concluded that the plaintiff was in no sense an employee of the defendant.

For the reasons above stated, the judgment is reversed and a' new trial ordered, with costs to the appellant to abide the event.

Giegerich and O’Gormar, JJ., concur.

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