De Hierapolis v. Webber

Appellate Terms of the Supreme Court of New York

De Hierapolis v. Webber

27 Misc. 789, 58 N.Y.S. 1139

CourtAppellate Terms of the Supreme Court of New York

DecidedMay 15, 1899

StatusPublished

This text of 27 Misc. 789 (De Hierapolis v. Webber) 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

De Hierapolis v. Webber, 27 Misc. 789, 58 N.Y.S. 1139 (N.Y. Ct. App. 1899).

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Opinion

Freedman, P. J.

This action was brought to'recover the sum of $99.75, alleged to be a balance due the'plaintiff under the terms of a contract to furnish brass railings for buildings erected by the defendant.

The facts, so far as they áre uncontradicted, are substantially as follows: In August, 1898,- one James C. Levy made a contract with the defendant, under which a quantity of railings were put-upon buildings then in course of erection by the defendant. On. November 12, 1898, the defendant paid Levy $50 to apply in payment for the railings so furnished. On November 19, 1898, the defendant, who up to that time supposed that Levy had contracted on his individual account, was informed that Levy and the plain- ■ tiff were partners, doing business under the name of the Metropolitan Brass Foundry' Co. The defendant, on. that day, made- his check payable to the order of thé;Metropolitan Brass Foundry Co;, for the sum of $350, and delivered it to Levy to apply in payment of the contract price of the railings. This check, it appears, was subsequently" indorsed and cashed by Levy, and at least the sum of $300 thereof paid to plaintiff. Subsequently, the defendant paid to the plaintiff an amount, which, including the $50 payment -made to Levy on November 12th, and the $350 check of November 19,1$98, and a small discount allowed by the plaintiff, equalled the . amount due under the contract.

[790]*790The plaintiff claiming that he never received the payment of November 12, 189.8, and only $300 of the check of November 19, 1898,'brought this action.

There was conflict of testimony as to whether Levy was in partnership with plaintiff," and as whether, if not ¿ partner, he was authorized to represent • the plaintiff in matters pertaining ' to the Metropolitan Brass Foundry Co., and to receive payments for- and on behalf of the plaintiff, .and .upon these questions the trial judge found in favor of the defendant. It does not appear that such finding was against -the weight of evidence,, or that; injustice has ' been doné. The judgment must, therefore, be affirmed.

■ MacLean and Levéntritt, JJ., concur.,

. Judgment , affirmed, with costs to respondent. -

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Freedman, P. J.

This action was brought to'recover the sum of $99.75, alleged to be a balance due the'plaintiff under the terms of a contract to furnish brass railings for buildings erected by the defendant.

The facts, so far as they áre uncontradicted, are substantially as follows: In August, 1898,- one James C. Levy made a contract with the defendant, under which a quantity of railings were put-upon buildings then in course of erection by the defendant. On. November 12, 1898, the defendant paid Levy $50 to apply in payment for the railings so furnished. On November 19, 1898, the defendant, who up to that time supposed that Levy had contracted on his individual account, was informed that Levy and the plain- ■ tiff were partners, doing business under the name of the Metropolitan Brass Foundry' Co. The defendant, on. that day, made- his check payable to the order of thé;Metropolitan Brass Foundry Co;, for the sum of $350, and delivered it to Levy to apply in payment of the contract price of the railings. This check, it appears, was subsequently" indorsed and cashed by Levy, and at least the sum of $300 thereof paid to plaintiff. Subsequently, the defendant paid to the plaintiff an amount, which, including the $50 payment -made to Levy on November 12th, and the $350 check of November 19,1$98, and a small discount allowed by the plaintiff, equalled the . amount due under the contract.

[790]*790The plaintiff claiming that he never received the payment of November 12, 189.8, and only $300 of the check of November 19, 1898,'brought this action.

There was conflict of testimony as to whether Levy was in partnership with plaintiff," and as whether, if not ¿ partner, he was authorized to represent • the plaintiff in matters pertaining ' to the Metropolitan Brass Foundry Co., and to receive payments for- and on behalf of the plaintiff, .and .upon these questions the trial judge found in favor of the defendant. It does not appear that such finding was against -the weight of evidence,, or that; injustice has ' been doné. The judgment must, therefore, be affirmed.

■ MacLean and Levéntritt, JJ., concur.,

. Judgment , affirmed, with costs to respondent. -

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27 Misc. 789, 58 N.Y.S. 1139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/de-hierapolis-v-webber-nyappterm-1899.