Ebling Brewing Co. v. Feldman

Appellate Terms of the Supreme Court of New York

Ebling Brewing Co. v. Feldman

114 N.Y.S. 910

CourtAppellate Terms of the Supreme Court of New York

DecidedFebruary 5, 1909

StatusPublished

This text of 114 N.Y.S. 910 (Ebling Brewing Co. v. Feldman) 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

Ebling Brewing Co. v. Feldman, 114 N.Y.S. 910 (N.Y. Ct. App. 1909).

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Opinion

SEABURY, J.

The complaint rests the plaintiff’s cause of action upon a promissory note signed by the defendant. The note was admitted. Attached to the note was a receipt, signed by the defendant, atknowledging the receipt of a “cellar icehouse and beer apparatus complete,” and providing that such icehouse and apparatus “shall bé a collateral security for the payment of above note, and that it cannot be sold, except with the consent of said the Ebling Brewing Company, until the above note is paid.”

The defendant attempted to prove that the plaintiff was to use the note only in the event that the defendant “should dispose of the said fixtures or ruin them,” and claimed that lie_ had not disposed of the fixtúres and had offered to return them to the plaintiff. The court below not only permitted the defendant to offer evidence in support of this claim, but allowed the defendant to prove transactions which occurred prior to the giving of the note, and which had nothing at all to do with it. Thus the defendant was permitted to prove what he had paid for his place of business, and to show the business relations which had existed between the plaintiff and the person from whom the defendant had purchased the business. This evidence was entirely foreign to the issues raised by the pleadings, and was necessarily prejudicial to the defendant. While parol evidence may be received to show that an instrument was not to be binding until the performance of a condition precedent, the evidence received by the court below was not limited to the proof of such a condition, and was not justified by any rule of evidence. Gilroy v. Everson-Hickok Co., 118 App. Div. 733, 103 N. Y. Supp. 620, affirmed 190 N. Y. 551, 83 N. E. 1125.

The judgment and order appealed from should be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.

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SEABURY, J.

The complaint rests the plaintiff’s cause of action upon a promissory note signed by the defendant. The note was admitted. Attached to the note was a receipt, signed by the defendant, atknowledging the receipt of a “cellar icehouse and beer apparatus complete,” and providing that such icehouse and apparatus “shall bé a collateral security for the payment of above note, and that it cannot be sold, except with the consent of said the Ebling Brewing Company, until the above note is paid.”

The defendant attempted to prove that the plaintiff was to use the note only in the event that the defendant “should dispose of the said fixtures or ruin them,” and claimed that lie_ had not disposed of the fixtúres and had offered to return them to the plaintiff. The court below not only permitted the defendant to offer evidence in support of this claim, but allowed the defendant to prove transactions which occurred prior to the giving of the note, and which had nothing at all to do with it. Thus the defendant was permitted to prove what he had paid for his place of business, and to show the business relations which had existed between the plaintiff and the person from whom the defendant had purchased the business. This evidence was entirely foreign to the issues raised by the pleadings, and was necessarily prejudicial to the defendant. While parol evidence may be received to show that an instrument was not to be binding until the performance of a condition precedent, the evidence received by the court below was not limited to the proof of such a condition, and was not justified by any rule of evidence. Gilroy v. Everson-Hickok Co., 118 App. Div. 733, 103 N. Y. Supp. 620, affirmed 190 N. Y. 551, 83 N. E. 1125.

The judgment and order appealed from should be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.

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Bluebook (online)

114 N.Y.S. 910, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ebling-brewing-co-v-feldman-nyappterm-1909.

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