Barth v. Paul

Appellate Terms of the Supreme Court of New York

Barth v. Paul

50 Misc. 600, 99 N.Y.S. 425

CourtAppellate Terms of the Supreme Court of New York

DecidedMay 15, 1906

StatusPublished

This text of 50 Misc. 600 (Barth v. Paul) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Barth v. Paul, 50 Misc. 600, 99 N.Y.S. 425 (N.Y. Ct. App. 1906).

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Opinion

Clinch, J.

Plaintiff sued to recover a balance due for goods sold and delivered to defendants, Gustave- J. Paul and Frank M. Paul, doing business as copartners under the name of Paul Bros. The answer admits the copartnership and denies the other allegations of the complaint. Plaintiff [601]*601proved that two lots of tobacco were ordered by Hathan A. Paul from him on March 19 and June 13, 1900. He testified that the goods were shipped to Paul Bros., and he exhibited a receipt for the shipment of June thirteenth, billed to Paul Bros, at their place of business and signed by H. A. Paul. He was permitted to testify, without exception, that for eight or nine years prior to the transaction in question he had been doing business with Paul Bros., and that during that time Hathan A. Paul had done the buying; also that he received the order of March nineteenth in Paul Bros’, place of business from Hathan A. Paul. On cross-examination he also testified that he had had a conversation with one of the Paul Bros, in presence of both of them in respect to the shipment of June thirteenth, and that he never charged anything except to Paul Bros. He also testified, without objection or exception, that Hathan A. Paul had given him orders for goods in Paul Pros’, place of business, in the presence of Gustave J. and Prank M. Paul, for which Paul Bros, had paid. Plaintiff then attempted to introduce certain letters from Hathan A. Paul and Paul Bros., received in the ordinary course of business, for the purpose of showing that Hathan A. Paul was connected in business with Paul Bros., had charge of their financial transactions, and of proving agency. These letters were excluded by the trial court, and the defendants’ motion to dismiss the complaint, on the ground that the plaintiff had failed to prove agency and had failed to establish allegations of the complaint, was granted. ’

The letters were clearly admissible and should have been received, although it may be doubted whether they were really necessary to prove plaintiff’s case, as it would seem from the evidence admitted that the agency of Hathan A. Paul had been sufficiently established to bind the defendants prima facie.

Gildebsleeve and Davis, Jj., concur.

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

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Clinch, J.

Plaintiff sued to recover a balance due for goods sold and delivered to defendants, Gustave- J. Paul and Frank M. Paul, doing business as copartners under the name of Paul Bros. The answer admits the copartnership and denies the other allegations of the complaint. Plaintiff [601]*601proved that two lots of tobacco were ordered by Hathan A. Paul from him on March 19 and June 13, 1900. He testified that the goods were shipped to Paul Bros., and he exhibited a receipt for the shipment of June thirteenth, billed to Paul Bros, at their place of business and signed by H. A. Paul. He was permitted to testify, without exception, that for eight or nine years prior to the transaction in question he had been doing business with Paul Bros., and that during that time Hathan A. Paul had done the buying; also that he received the order of March nineteenth in Paul Bros’, place of business from Hathan A. Paul. On cross-examination he also testified that he had had a conversation with one of the Paul Bros, in presence of both of them in respect to the shipment of June thirteenth, and that he never charged anything except to Paul Bros. He also testified, without objection or exception, that Hathan A. Paul had given him orders for goods in Paul Pros’, place of business, in the presence of Gustave J. and Prank M. Paul, for which Paul Bros, had paid. Plaintiff then attempted to introduce certain letters from Hathan A. Paul and Paul Bros., received in the ordinary course of business, for the purpose of showing that Hathan A. Paul was connected in business with Paul Bros., had charge of their financial transactions, and of proving agency. These letters were excluded by the trial court, and the defendants’ motion to dismiss the complaint, on the ground that the plaintiff had failed to prove agency and had failed to establish allegations of the complaint, was granted. ’

The letters were clearly admissible and should have been received, although it may be doubted whether they were really necessary to prove plaintiff’s case, as it would seem from the evidence admitted that the agency of Hathan A. Paul had been sufficiently established to bind the defendants prima facie.

Gildebsleeve and Davis, Jj., concur.

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

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Bluebook (online)

50 Misc. 600, 99 N.Y.S. 425, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barth-v-paul-nyappterm-1906.