Coughlan v. Elfin

Appellate Terms of the Supreme Court of New York

Coughlan v. Elfin

140 N.Y.S. 978

CourtAppellate Terms of the Supreme Court of New York

DecidedApril 10, 1913

StatusPublished

This text of 140 N.Y.S. 978 (Coughlan v. Elfin) 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

Coughlan v. Elfin, 140 N.Y.S. 978 (N.Y. Ct. App. 1913).

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Opinion

GERARD, J.

Plaintiff brought this action to recover the sum of $150, alleged to. have been agreed to be paid to the plaintiff by a per[979]*979son known to him as “Barney” Elfin, and who on the trial testified that he was Selig Elfin, in consideration of the plaintiff obtaining for the defendants a contract for the installation of certain bar fixtures.

It appears that the defendants are in the business of selling bar fixtures, and plaintiff testified that -in April, 1912, he had a conversation with Barney Elfin, and that Barney Elfin agreed that, if plaintiff got the job of fixing up the saloon of one Murphy, he would give plaintiff $150, and that thereafter plaintiff did procure the order for defendants from Murphy, and that Elfin paid him $45 on account of the $150 promised.

A man identified by plaintiff and his witnesses as Barney Elfin took the stand and testified that he was Selig Elfin, and that he was a salesman and estimator for Elfin, Enoch & Co., a partnership consisting of Louis Enoch and Barney Elfin; that he had never been a member of this partnership, and that the Barney Elfin who was a member was a truck driver; and that he was only the estimator and salesman for the firm. Max Haimowitz was not served in the action.

The plaintiff respondent claims that, as this Barney Elfin who drove the truck was not called, the judgment of the court below can be sustained on the theory that the court found that the Elfin who was in court, and who was identified by plaintiff and his witnesses as Barney Elfin, 'was really Barney Elfin, and the one who was a member of the firm of Elfin, Enoch & Co., and that he was not Selig Elfin, and that the Barney Elfin referred to by the man who called himself Selig Elfin either did not exist or was not a member of the firm of Elfin, Enoch & Co.

I think that in view of this confusion, the interests of justice will be best served by ordering a new trial, where there can be a thorough inquiry as to the identity of Barney and Selig Elfin.

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

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GERARD, J.

Plaintiff brought this action to recover the sum of $150, alleged to. have been agreed to be paid to the plaintiff by a per[979]*979son known to him as “Barney” Elfin, and who on the trial testified that he was Selig Elfin, in consideration of the plaintiff obtaining for the defendants a contract for the installation of certain bar fixtures.

It appears that the defendants are in the business of selling bar fixtures, and plaintiff testified that -in April, 1912, he had a conversation with Barney Elfin, and that Barney Elfin agreed that, if plaintiff got the job of fixing up the saloon of one Murphy, he would give plaintiff $150, and that thereafter plaintiff did procure the order for defendants from Murphy, and that Elfin paid him $45 on account of the $150 promised.

A man identified by plaintiff and his witnesses as Barney Elfin took the stand and testified that he was Selig Elfin, and that he was a salesman and estimator for Elfin, Enoch & Co., a partnership consisting of Louis Enoch and Barney Elfin; that he had never been a member of this partnership, and that the Barney Elfin who was a member was a truck driver; and that he was only the estimator and salesman for the firm. Max Haimowitz was not served in the action.

The plaintiff respondent claims that, as this Barney Elfin who drove the truck was not called, the judgment of the court below can be sustained on the theory that the court found that the Elfin who was in court, and who was identified by plaintiff and his witnesses as Barney Elfin, 'was really Barney Elfin, and the one who was a member of the firm of Elfin, Enoch & Co., and that he was not Selig Elfin, and that the Barney Elfin referred to by the man who called himself Selig Elfin either did not exist or was not a member of the firm of Elfin, Enoch & Co.

I think that in view of this confusion, the interests of justice will be best served by ordering a new trial, where there can be a thorough inquiry as to the identity of Barney and Selig Elfin.

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

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Bluebook (online)

140 N.Y.S. 978, Counsel Stack Legal Research, https://law.counselstack.com/opinion/coughlan-v-elfin-nyappterm-1913.