Conabeer v. Bruenn

Appellate Terms of the Supreme Court of New York

Conabeer v. Bruenn

121 N.Y.S. 207

CourtAppellate Terms of the Supreme Court of New York

DecidedFebruary 18, 1910

StatusPublished

This text of 121 N.Y.S. 207 (Conabeer v. Bruenn) 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

Conabeer v. Bruenn, 121 N.Y.S. 207 (N.Y. Ct. App. 1910).

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Opinion

BIJUR, J.

This action was brought for $25, value of four tons of coal delivered on November 3, 1908, and used in premises under lease to defendant, namely, two “hot-water flats.” Plaintiff’s testimony is that this coal was ordered by the janitor in the usual way, and that defendant had paid for coal previously ordered in the same way for more than a year. Plaintiff also testified to conversations had with defendant, in which the latter apparently fully confirmed the janitor’s authority in the premises.

Defendant, who took the stand on his own behalf, merely denied having one of these conversations with the plaintiff about this particular coal in suit. No motion to dismiss was made at the close of plaintiff’s case, and defendant’s testimony certainly did not negative plaintiff’s proofs. A dismissal, therefore, on the merits, was not only unwarranted, but a dismissal under any circumstances was error. Clark v. Scovill, 133 App. Div. 821, 118 N. Y. Supp. 235.

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

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BIJUR, J.

This action was brought for $25, value of four tons of coal delivered on November 3, 1908, and used in premises under lease to defendant, namely, two “hot-water flats.” Plaintiff’s testimony is that this coal was ordered by the janitor in the usual way, and that defendant had paid for coal previously ordered in the same way for more than a year. Plaintiff also testified to conversations had with defendant, in which the latter apparently fully confirmed the janitor’s authority in the premises.

Defendant, who took the stand on his own behalf, merely denied having one of these conversations with the plaintiff about this particular coal in suit. No motion to dismiss was made at the close of plaintiff’s case, and defendant’s testimony certainly did not negative plaintiff’s proofs. A dismissal, therefore, on the merits, was not only unwarranted, but a dismissal under any circumstances was error. Clark v. Scovill, 133 App. Div. 821, 118 N. Y. Supp. 235.

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

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Bluebook (online)

121 N.Y.S. 207, Counsel Stack Legal Research, https://law.counselstack.com/opinion/conabeer-v-bruenn-nyappterm-1910.

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