Brower v. New York Mailing & Advertising Co.

48 Misc. 653

Opinion

Per Curiam.

Referring to the determination of this court on a former appeal herein (92 N. Y. Supp. 61), it was said that “the plaintiffs offered no explanation of these letters, and they clearly contradict the plaintiffs’ testimony.” For aught that appears, the same is true on this appeal; for charges in the books of Hindle & Co., and payment by the plaintiffs of the disputed indebtedness, as well as evidence of time by artisans, may hardly be construed as at all explanatory of the positive statements of the plaintiffs, particularly so late as in their letter of April 13, 1904, denying their liability and, so, their agreement with the defendant, notwithstanding they pleaded and testified orally to the contrary.

Scott, J., concurs; Gilderslebve, J., taking no part.

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