Opinion
May 20, 1958
The complaint should have been dismissed if only for the reason that there is a failure of proof identifying the additional tax assessment, for payment of which plaintiff seeks recovery, with the proceeds of the merchandise allegedly sold as agent of defendants. Furthermore, no evidence was introduced in support of a critical allegation of the complaint — that in a sale of the goods plaintiff should not reveal defendants' identity as owners — perhaps because proof of the agreement might have stamped it as illegal. Also, no reason is furnished for plaintiff not having advised the Internal Revenue Service that he had acted only as agent in the sale transactions. Lastly, it would appear that defendants neither sought nor obtained any knowledge, direction or control of plaintiff's methods of resale; and that the relationship among the parties in the transactions involved in this suit was that of buyer and seller, not principal and agent. Judgment unanimously reversed and the complaint dismissed, on the law, and without costs.
Concur — Botein, P.J., Breitel, Stevens and Bergan, JJ.