Briggs v. Husing

134 N.Y.S. 1127

• Court: Appellate Terms of the Supreme Court of New York
• Decided: April 16, 1912
• Status: Published

Opinion

BIJUR, J.

This action was brought to recover for the use of coats and aprons furnished by plaintiff to defendant’s barkeepers. Judgment was rendered for the full amount demanded in the bill of particulars. On conflicting evidence, the court evidently believed the plaintiff’s version; but, on cross-examination, the plaintiff himself testified that defendant ordered him to deliver six coats and twelve aprons. Whether this means weekly, or at each delivery, is not clear. He also testified that defendant had ordered him to deliver as much as was needed. Measured by the limitation which plaintiff himself concedes was placed upon the order, and even adding thereto the possible extension of three additional coats, which defendant admitted to have ordered to be delivered weekly, apparently at plaintiff’s discretion, the judgment is excessive. Under the circumstances, we must adopt the suggestion of the appellant that, if the plaintiff will acquiesce in a reduction of the judgment to the sum of $133.40 and appropriate costs in the court below, the judgment, as thus modified, will be affirmed, without costs to either party upon this appeal; otherwise, the judgment must be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.