Opinion
December 7, 1972
Order, Supreme Court, New York County, entered June 5, 1972, unanimously reversed, on the law, defendant-appellant's motion to dismiss the fifth to eighth causes of the complaint, inclusive, granted, and the complaint dismissed and the action severed as to him. Appellant shall recover of respondent $60 costs and disbursements of this appeal. The simple question is whether the record supports plaintiff's claim that the goods in issue, for which recovery is sought, were sold to defendant individually or to the defendant corporation only. All of the documentary evidence — invoices, letters, purchase orders, even plaintiff's ledger sheet — indicates that plaintiff dealt with the corporation, not the individual. Even an unsigned draft contract prepared by plaintiff supports this view. Appellant's signatures on documents were signed in his official capacity. The mere private intention or secret belief of plaintiff is insufficient to overcome the documentary evidence or to create a triable issue.
Concur — Stevens, P.J., Murphy, McNally and Steuer, JJ.