Opinion
October 24, 1960
In an action to recover the balance due under a conditional sales contract, the plaintiff, by permission of this court, appeals from an order of the Appellate Term, made March 24, 1960. Said order modifies an order of the Municipal Court of the City of New York, Borough of Brooklyn, Third District, dated February 5, 1960, so as to grant summary judgment in favor of defendant dismissing the complaint. Plaintiff and a corporation of which decedent was the president entered into the contract in suit. In reliance on paragraph 5 of said contract, plaintiff now seeks to recover from decedent's estate the unpaid balance due under the contract. Said paragraph provides that "Where the Purchaser is a corporation, in consideration of extending credit to it, the officer or officers signing on behalf of such corporation, hereby personally guarantee the payments hereinabove provided for." The decedent signed the agreement as president of the corporation. As an individual he was not a party to the agreement or named therein. The parties concede that only a question of law is presented. Order of the Appellate Term affirmed, with costs (cf. Warren-Connolly Co. v. Saphin, 283 App. Div. 391). The decedent, as an agent for a disclosed principal, acting within the scope of his authority, is not liable for a breach of the contract unless the intent to bind himself personally clearly appears. ( Keskal v. Modrakowski, 249 N.Y. 406; Mencher v. Weiss, 306 N.Y. 1.) Nolan, P.J., Ughetta, Kleinfeld, Christ and Brennan, JJ., concur.