Diamondstone v. Hirsh & Friedman, Inc.

Appellate Terms of the Supreme Court of New York

Diamondstone v. Hirsh & Friedman, Inc.

123 Misc. 515, 205 N.Y.S. 168, 1924 N.Y. Misc. LEXIS 918

CourtAppellate Terms of the Supreme Court of New York

DecidedJune 5, 1924

StatusPublished

This text of 123 Misc. 515 (Diamondstone v. Hirsh & Friedman, Inc.) 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

Diamondstone v. Hirsh & Friedman, Inc., 123 Misc. 515, 205 N.Y.S. 168, 1924 N.Y. Misc. LEXIS 918 (N.Y. Ct. App. 1924).

Pincite

Opinion

Per Curiam.

The record discloses a distinct issue of fact as to whether the agreement was, as testified to by plaintiffs’ witnesses, that defendant was to manufacture the garments according to sample exhibited by plaintiffs to defendant, or, as testified to by defendant’s witnesses, according to sample made by defendant and accepted by plaintiffs. It was error for the learned court to charge the jury, at the request of defendant, that if defendant did its work “ pursuant to the terms of the order and according to the sample which the defendant made for the plaintiffs ” they should find against plaintiffs and in favor of defendant on its counterclaim. As the preponderance of proof was strongly in favor of plaintiffs, this error was highly prejudicial.

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

All concur; present, Guy, Gavegan and Mitchell, JJ.

Judgment reversed and new trial ordered.

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

Per Curiam.

The record discloses a distinct issue of fact as to whether the agreement was, as testified to by plaintiffs’ witnesses, that defendant was to manufacture the garments according to sample exhibited by plaintiffs to defendant, or, as testified to by defendant’s witnesses, according to sample made by defendant and accepted by plaintiffs. It was error for the learned court to charge the jury, at the request of defendant, that if defendant did its work “ pursuant to the terms of the order and according to the sample which the defendant made for the plaintiffs ” they should find against plaintiffs and in favor of defendant on its counterclaim. As the preponderance of proof was strongly in favor of plaintiffs, this error was highly prejudicial.

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

All concur; present, Guy, Gavegan and Mitchell, JJ.

Judgment reversed and new trial ordered.

Cite This Page — Counsel Stack

Bluebook (online)

123 Misc. 515, 205 N.Y.S. 168, 1924 N.Y. Misc. LEXIS 918, Counsel Stack Legal Research, https://law.counselstack.com/opinion/diamondstone-v-hirsh-friedman-inc-nyappterm-1924.