Besson v. Levey

Appellate Terms of the Supreme Court of New York

Besson v. Levey

110 N.Y.S. 230

CourtAppellate Terms of the Supreme Court of New York

DecidedMay 15, 1908

StatusPublished

This text of 110 N.Y.S. 230 (Besson v. Levey) 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

Besson v. Levey, 110 N.Y.S. 230 (N.Y. Ct. App. 1908).

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Opinion

GIRDERSLEEVE, P. J.

The plaintiff is a dressmaker, and brought this action against the defendant, claiming the sum of $25 for goods sold and delivered and the sum of $10 for repairing two dresses for the defendant. The defendant admitted the plaintiff’s claim, but counterclaimed for damages alleged to have been done to the dresses by reason of improper workmanship to the amount of $11, also for damages to a certain amount of silk delivered to plaintiff by defendant to the extent of $15, and claimed the sum of $50 for laces and dress materials delivered to the plaintiff which the defendant claimed had never been returned to her. The lower court allowed plaintiff’s claim of $35, disallowed defendant’s claim of $11, but allowed her claims of $50 and $15, respectively, and gave judgment for $30 in her favor.

The evidence given in support of the two counterclaims allowed by the court was insufficient to authorize the allowance of the same. The undisputed testimony was that, as to the laces and materials delivered to the plaintiff by the defendant, they were left at plaintiff’s place of business, were never thereafter called for or demanded of the plaintiff, and they were produced in court at the trial by the plaintiff, and were offered to the defendant and by her refused. In reference thereto the court said:

“So far as conversion goes, no demand was proved, and there can be no conversion where no demand was proved.”

Nevertheless the court allowed this claim. As to the claim of the defendant for the value of the silk, it appears that the defendant took some silk, valued at $15, to plaintiff’s place of business, and took it away again the §ame week. The claim that plaintiff ruined the silk is based upon the statement of the defendant that when the silk was returned "it was a sight.” This does not show that the silk was ruined or valueless, and plaintiff could not be charged with its value upon that testimony alone.

Judgment reversed,‘and new trial ordered, with costs to appellant to abide the event. All concur.

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GIRDERSLEEVE, P. J.

The plaintiff is a dressmaker, and brought this action against the defendant, claiming the sum of $25 for goods sold and delivered and the sum of $10 for repairing two dresses for the defendant. The defendant admitted the plaintiff’s claim, but counterclaimed for damages alleged to have been done to the dresses by reason of improper workmanship to the amount of $11, also for damages to a certain amount of silk delivered to plaintiff by defendant to the extent of $15, and claimed the sum of $50 for laces and dress materials delivered to the plaintiff which the defendant claimed had never been returned to her. The lower court allowed plaintiff’s claim of $35, disallowed defendant’s claim of $11, but allowed her claims of $50 and $15, respectively, and gave judgment for $30 in her favor.

The evidence given in support of the two counterclaims allowed by the court was insufficient to authorize the allowance of the same. The undisputed testimony was that, as to the laces and materials delivered to the plaintiff by the defendant, they were left at plaintiff’s place of business, were never thereafter called for or demanded of the plaintiff, and they were produced in court at the trial by the plaintiff, and were offered to the defendant and by her refused. In reference thereto the court said:

“So far as conversion goes, no demand was proved, and there can be no conversion where no demand was proved.”

Nevertheless the court allowed this claim. As to the claim of the defendant for the value of the silk, it appears that the defendant took some silk, valued at $15, to plaintiff’s place of business, and took it away again the §ame week. The claim that plaintiff ruined the silk is based upon the statement of the defendant that when the silk was returned "it was a sight.” This does not show that the silk was ruined or valueless, and plaintiff could not be charged with its value upon that testimony alone.

Judgment reversed,‘and new trial ordered, with costs to appellant to abide the event. All concur.

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Bluebook (online)

110 N.Y.S. 230, Counsel Stack Legal Research, https://law.counselstack.com/opinion/besson-v-levey-nyappterm-1908.