Brook v. Kalfon

Appellate Terms of the Supreme Court of New York

Brook v. Kalfon

58 Misc. 192, 108 N.Y.S. 1102

CourtAppellate Terms of the Supreme Court of New York

DecidedMarch 15, 1908

StatusPublished

This text of 58 Misc. 192 (Brook v. Kalfon) 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

Brook v. Kalfon, 58 Misc. 192, 108 N.Y.S. 1102 (N.Y. Ct. App. 1908).

Pincite

Opinions

Bischoff, J.

There was no question as to the fact of the sale and delivery of the goods to the defendant, and a recovery was resisted solely upon the affirmative defense of infancy. To support this defense a witness was called who testified that he was an uncle of the defendant; that at the' time of her birth he was living in- the house where she was born, and that the date of her birth was March 8, 1890. The goods in suit were supplied at the order of the defendant’s husband and were delivered at her place of business, of which her husband had been placed in apparent charge. Called as a witness, the defendant stated that she had filed a certificate that she was doing business under the name of Randall’s Painless Dentistry, and that she was married on December 6, 1906, before an alderman of this city. "Upon the proof before the justice, we find no reason for disturbing this judgment for the plaintiffs, since the weight of evidence was not necessarily in favor of the defense of infancy. The testimony of the single witness, Levy, called to establish the defendant’s nonage, was not conclusive and could be opposed by the inferences which the justice might draw from the [194]*194appearance of the defendant as well as from the fact of her marriage at a time when, if Levy’s testimony were correct, she was far from the age of -legal consent. On cross-examination, she testified that, at the time of her marriage, she knew her true age and stated it to the alderman; and it is but a fair inference that her true age, when so stated to the alderman, must have been considerably greater than that testified to by Levy, if the official was content to perform the ceremony. In this view, Levy’s testimony — the only evidence of infancy — was so far infirmed as to render it of no particular weight upon the question of the actual date of the defendant’s birth.

The judgment should be affirmed, with costs.

Gildersleeve, J., concurs.

Free access — add to your briefcase to read the full text and ask questions with AI

Bischoff, J.

There was no question as to the fact of the sale and delivery of the goods to the defendant, and a recovery was resisted solely upon the affirmative defense of infancy. To support this defense a witness was called who testified that he was an uncle of the defendant; that at the' time of her birth he was living in- the house where she was born, and that the date of her birth was March 8, 1890. The goods in suit were supplied at the order of the defendant’s husband and were delivered at her place of business, of which her husband had been placed in apparent charge. Called as a witness, the defendant stated that she had filed a certificate that she was doing business under the name of Randall’s Painless Dentistry, and that she was married on December 6, 1906, before an alderman of this city. "Upon the proof before the justice, we find no reason for disturbing this judgment for the plaintiffs, since the weight of evidence was not necessarily in favor of the defense of infancy. The testimony of the single witness, Levy, called to establish the defendant’s nonage, was not conclusive and could be opposed by the inferences which the justice might draw from the [194]*194appearance of the defendant as well as from the fact of her marriage at a time when, if Levy’s testimony were correct, she was far from the age of -legal consent. On cross-examination, she testified that, at the time of her marriage, she knew her true age and stated it to the alderman; and it is but a fair inference that her true age, when so stated to the alderman, must have been considerably greater than that testified to by Levy, if the official was content to perform the ceremony. In this view, Levy’s testimony — the only evidence of infancy — was so far infirmed as to render it of no particular weight upon the question of the actual date of the defendant’s birth.

The judgment should be affirmed, with costs.

Gildersleeve, J., concurs.

Cite This Page — Counsel Stack

Bluebook (online)

58 Misc. 192, 108 N.Y.S. 1102, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brook-v-kalfon-nyappterm-1908.

Opinions

Related

Cite This Page — Counsel Stack