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the deposit, or to his successor, "upon the discharge of the lien against the property pursuant to law," was that the money should be repaid as soon as the lien should become discharged by virtue of any of the provisions of section 18 of the lien law, which provides for the discharge of the lien.

It may be that the depositor of the money on good cause shown. would have the right to require the lienor to commence an action or to obtain an order discharging the lien, pursuant to the provisions of section 3417 of the Code of Civil Procedure, before the expiration of the year, and that the rule applicable to a case where the lien has been discharged, by filing an undertaking pursuant to the provisions of subdivision 3 of section 18 of the lien law, announced in Matter of Uris v. Brackett Realty Co., 114 App. Div. 29, 99 N. Y. Supp. 642, should not govern where the lien has been discharged pursuant to the provisions of section 19 of the lien law, by depositing money which it may be a hardship to the depositor to leave on deposit throughout the year; but that question is not now presented for decision. In the present case, the year has expired without the lienor having commenced an action or obtained an order extending the lien, and it is quite clear that the lien has become discharged by operation of law, pursuant to the express terms of subdivision 2 of section 18 of the lien law.

In Maneely v. City of New York, 105 N. Y. Supp. 976, 119 App. Div. 376, the attention of the court was not drawn to the change in the statutory law herein pointed out, and the writer of this opinion, in writing for the court in that case, fell into error in deeming Hafker v. Henry, supra, applicable under the present law, and observing, upon the authority of that decision, that lienors whose liens have been discharged by filing undertakings should be made parties to a foreclosure, even though they have failed to commence an action to foreclose their liens within the time limited by statute, as extended by the courta point, however, which was not essential to the decision of that case. It follows that the order should be affirmed, with $10 costs and disbursements. All concur.

IRISH INDUSTRIAL EXPOSITION & AMUSEMENT CO., Limited, v. SHERIDAN.

(Supreme Court, Appellate Division, First Department. October 25, 1907.) CONTINUANCE-SICKNESS OF PARTY.

Where, upon the application for an adjournment, it appeared from the affidavit of a reputable physician that defendant was so ill that to go to court would be at the risk of his life, an adjournment should be granted, although there had been previous adjournments for the same reason, [Ed. Note.-For cases in point, see Cent. Dig. vol. 10, Continuance, §§ 40-57.]

Appeal from Special Term.

Action by the Irish Industrial Exposition & Amusement Company, Limited, against Andrew Sheridan. From an order denying a motion by defendant to open his default and vacate an inquest taken against him, he appeals. Reversed.

Argued before PATTERSON, P. J., and INGRAHAM, LAUGHLIN, CLARKE, and HOUGHTON, JJ.

Edward W. S. Johnston, for appellant.

T. W. Tyng, for respondent.

PER CURIAM. It satisfactorily appears that at the time this inquest was taken the defendant was a sick man, and there was presented to the court upon the application for an adjournment the affidavit of a reputable physician, in which it was stated:

*

"That the defendant has been confined to his bed since December 14th, 1906. Although Mr. Sheridan is improving in health, he still has a daily rise of temperature to 102° and is at times very weak. Until these conditions are better, I must forbid him from going to court, as such duty would be at the risk of his life."

It seems to us that, while there had been some previous adjournments, they had all been caused by the defendant's serious illness, and that, under the circumstances presented, the further adjournment asked for ought to have been granted.

The order appealed from therefore should be reversed, without costs in this court to either party, and the motion to open the inquest and let the defendant in to defend granted upon the payment of costs as taxed, and $10 motion costs; the judgment to stand as security.

(121 App. Div. 667.)

MOORE V. VULCANITE PORTLAND CEMENT CO. et al. (Supreme Court, Appellate Division, First Department. October 25, 1907.) PRINCIPAL AND AGENT-UNDISCLOSED PRINCIPAL-RIGHTS.

Though, generally, an undisclosed principal may enforce a contract made by his agent as the agent's own contract, where a company, in contracting to sell cement, insisted on making a personal contract with a responsible firm, refused to deliver the cement under the contract to a corporation which it understood had succeeded the firm, called attention to the fact that correspondence had been conducted by plaintiff on behalf of the firm or corporation, and refused to admit the existence of the contract until it was definitely determined that the party with which it had contracted was the firm, plaintiff cannot enforce the contract as undisclosed principal of the firm.

[Ed. Note. For cases in point, see Cent. Dig. vol. 40, Principal and Agent, 88 502-520.]

Appeal from Trial Term.

Action by Albert S. Moore against the Vulcanite Portland Cement Company and others. From a judgment for plaintiff, and an order denying a new trial, defendant company appeals. Reversed, and new trial ordered.

Argued before PATTERSON, P. J., and INGRAHAM, LAUGHLIN, CLARKE, and HOUGHTON, JJ.

William F. Scott, for appellant.

Horace D. Byrnes, for respondent.

INGRAHAM, J. This appellant made a contract with V. J. Hedden & Sons, a copartnership, whereby the appellant "agrees to sell,

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and V. J. Hedden & Sons agree to buy," 25,000 barrels of cement at a price fixed. This contract was signed "The Vulcanite Portland Cement Company, by W. F. Vernon, Sales Agt. Accepted. L. O. Hedden"; the latter being a member of the firm of V. J. Hedden & Sons. This contract was dated May 1, 1902, and the original instrument was transmitted to the appellant with a letter dated May 6, 1902, signed by "V. J. Hedden & Sons Co., per Moore," which stated:

"We beg to return herewith, duly signed, the contract of sale dated May 1st, for 25,000 barrels of Vulcanite Portland Cement, as per our acceptance given to you. We will give you due notice of time and destination in making the deliveries under said contract."

On June 11, 1902, the appellant was, by letter signed "V. J. Hedden & Sons Co., per Moore," directed to ship 5,000 barrels of cement to Newark, N. J. A letter similarly signed was sent to the appellant on June 12, 1902, requesting it to deliver a minimum of 2,000 barrels per week in addition to the 300 barrels per week which were to be shipped as per order given the day before. This was followed on the 13th of June by a letter similarly signed, with a request for 2,000 barrels additional to be shipped to Allegheny, Pa. On June 14th there was a letter to the appellant, signed "V. J. Hedden & Sons, per Moore," disputing the statement of appellant in relation to the delivery at Harrison, N. J., insisting upon "our contract rights," and requesting to know whether the appellant intended to refuse to fulfill its contract. This was followed by a letter, signed "V. J. Hedden & Sons, per Moore," in which the writers demanded a reply before 12 o'clock of that day as to whether the appellant refused to go on and deliver cement under the contract. On the same day the appellant wrote a letter to "V. J. Hedden & Sons," stating that they had referred the matters contained in their letter of the 14th to their main office in Philadelphia. And on June 20th the appellant wrote to "V. J. Hedden & Sons Company" that they were in receipt of a letter under date of the 18th instant on the letter head of "V. J. Hedden & Sons" and signed "V. J. Hedden & Sons Company, per Moore," and stating that the matter was in a very unsatisfactory shape; that according to the contract the purchaser was named as "V. J. Hedden & Sons," and it was accepted by "L. O. Hedden." It was then stated that the appellant had been advised that the firm of V. J. Hedden & Sons had been dissolved or was in process of liquidation, and that its business had been taken over by the V. J. Hedden & Sons Company; that this left the matter without a binding contract "upon you, your company or your firm, whichever one it is. Such a contract is not mutual, and therefore is not binding. * * * We supposed we were selling to the responsible firm of V. J. Hedden & Sons 25,000 barrels of cement to be delivered at Harrison, N. J. * * * Now, we have to suggest that if you want this cement for the V. J. Hedden & Sons Company to be used at Harrison, N. J., in connection with the contract which we understand that company has at that point, we will execute a properly drawn contract with the incorporated company, provided we have as security for the payment of the cement so sold, in accordance with the terms thereof, the personal obligations of Viner J. Hedden, Charles R. Hedden, Samuel S. Hedden, and Louis O. Hedden, whom we understand to be the persons

who compose the firm of V. J. Hedden & Sons. You will recognize that it is not reasonable to ask us to sell an incorporated company, with so small a capital as $1,000 paid in, a bill of merchandise which would exceed over $30,000 delivered at Harrison, N. J. Nor does our contract call for a delivery to the incorporated company, nor is there any acceptance by the incorporated company of the contract."

The answer to that letter, signed "V. J. Hedden & Sons, per Moore," stated that the appellant was mistaken in understanding that the business of V. J. Hedden & Sons had been taken over by the V. J. Hedden & Sons Company; that the firm of V. J. Hedden & Sons, comprised of the four gentlemen named in its letter, still exists and is doing business; that Louis Hedden, as a member of the firm of V. J. Hedden & Sons, had ample authority to bind his firm, and in pursuance of such authority executed the contract in question; that "you were and are selling to the responsible firm of V. J. Hedden & Sons the 25,000 barrels of cement, but the price to be paid you is $1.02 per barrel free on board cars at Vulcanite, N. J., and we have given and will give you the shipping directions as to the point or points to which we wish this cement sent." This was followed by further correspondence. There was finally a letter written by the appellant to V. J. Hedden & Sons, stating that the letter of June 21, 1902, was signed by "your Mr. Moore," and they were advised that this statement of Mr. Moore did not bind the firm; that the appellant was also advised: "That this difficulty can be obviated by a letter addressed to us, in which it will be stated that the firm does exist between the same parties as heretofore and is not in liquidation; and that the firm as such accepts the terms of the contract of May 1, 1902, with this company as binding upon the firm and the respective members thereof-and then have each member of the firm sign this letter, when this company will then comply with the terms of the contract on its part to be kept and performed."

In answer to this, a letter, dated June 28, 1902, was addressed to the appellant, signed by V. J. Hedden & Sons, V. J. Hedden, Charles R. Hedden, Samuel S. Hedden, and L. O. Hedden. It was there stated that, in compliance with the request as stated in appellant's letter of the 27th instant:

"We beg to confirm the statement as made to you in the previous letter written to you on 26th inst. and signed by Mr. Moore, to the effect that the firm of V. J. Hedden & Sons, as a copartnership, is still in existence for the purpose of prosecuting business, and as such firm does hereby confirm and ratify the contract executed on May 1, 1902, with your company for the purchase of 25,000 barrels of Vulcanite Portland cement at the price of $1.02 per barrel in bags f. o. b. at mill, delivery to be as ordered, such contract having been signed by Mr. L. O. Hedden of the firm."

As this somewhat changed the conditions of the contract of May 1, 1902, there was some further correspondence about it when, on July 11, 1902, a letter was written to the appellant as follows:

"Dear Sirs: We hereby confirm and ratify the contract as made with you under date of May 1, 1902, and signed by Mr. L. O. Hedden for our firm. Yours truly, V. J. Hedden & Sons."

And this was followed by a letter from the appellant dated July 14, 1902, stating:

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"We are in receipt of your favor of the 11th confirming and ratifying the contract made between this company and V. J. Hedden & Sons, dated May 1, 1902, and signed by Mr. L. O. Hedden. This letter is satisfactory to our attorney"—and requesting shipping directions, which thereafter followed.

Up to and including September 23d, the appellant shipped under orders from V. J. Hedden & Sons 3,200 barrels of cement, upon which there was due $3,904, for which the vendees had not paid. On October 18, 1902, the appellant wrote to V. J. Hedden & Sons, stating that they were in receipt of a letter of the 15th instant, demanding 21,400 barrels of cement, and threatening to annul the contract, and then continued:

"As you have not paid for the cement delivered to you, we deem both the notice and the annullment of no avail. We could not reasonably be expected to deliver more goods to one who has failed to pay for goods already received; nor can we admit that you can take any advantage of a contract which you have already broken by failure to pay as it requires. Under the circumstances, we have been obliged to rescind our contract with you and to place our claim in the hands of our attorneys for collection."

This was followed, on October 21st, by the commencement of an action against the firm of V. J. Hedden & Sons to recover the contract price for the cement delivered. On the same day, October 21st, V. J. Hedden & Sons remitted to the appellant a draft for $3,904 in payment of the cement delivered, and then demanded the delivery of the remaining cement under the contract. This demand not having been complied with, this action was subsequently commenced, not by V. J. Hedden & Sons, but by Albert S. Moore, claiming that he, the defendant L. O. Hedden, and one B. Sherwood Dunn, were the principals in the contract executed by V. J. Hedden & Sons; that V. J. Hedden & Sons made this contract as their agent; that Dunn had assigned his interest in the contract to the defendant Northampton Portland Cement Company; that the plaintiff had requested the Northampton Portland Cement Company and Hedden to join him in commencing the action, which they had refused to do, and they are therefore made defendants; and asking a recovery of the damages sustained by breach of the contract by the defendant. V. J. Hedden & Sons are not parties to this action, nor is Dunn, who, it is alleged, was originally one of the principals for whose benefit this contract with the appellant was made.

As one of the defenses in this action, the defendant alleged that the contract set forth in the complaint was made with the said firm of V. J. Hedden & Sons in reliance upon the plaintiff's representations that the cement contracted for was for the sole use of V. J. Hedden & Sons in their own building operations at Harrison, N. J., and not otherwise, and that the said plaintiff fraudulently concealed from this defendant the information that the said V. J. Hedden & Sons were acting as agents for the plaintiff and others, as set forth in the complaint. The plaintiff has recovered a verdict against the appellant for the total damages sustained by what was alleged to be a breach of this contract, and upon that verdict judgment in favor of the plaintiff was entered for the full amount of the damages; the other defendants, who were entitled to recover two-thirds of these damages, not being mentioned in the judgment.