Engel-Heller Co. v. Dineen

46 Misc. 111, 91 N.Y.S. 336

• Court: Appellate Terms of the Supreme Court of New York
• Decided: December 15, 1904
• Status: Published

Opinions

Gildersleeve, J.

This action is for goods sold and delivered. The answer is a general denial, and it is the contention of the defendant that the goods in question were sold to one Dennis Mullins for his account, and never ordered by or delivered to defendant. The justice gave judgment for plaintiff. Defendant appeals.

It appears that formerly Mullins was agent for the defendant and bought goods for the latter’s liquor saloon at' 83 Market street. Subsequently, Mullins set up on his own account, as defendant claims, and opened saloons at 240 South street, at Eighty-eighth street and Second avenue, and 120 Monroe street, Brooklyn. It was at the three last named places that the goods in question were delivered. Engel, on behalf of plaintiff, admits that he had never seen defendant during the time of the sale and delivery of the goods, and that the goods had been ordered by Mullins. He says further, on cross-examination, that the sales were made not by himself, but by his salesman, who was not called as a witness. His collector, Bauman, appears to have dealt in the matter only with Mullins. The defendant swears positively that he had no interest in the three places at which the goods were delivered, and never ordered the same. Mullins swears that he ordered the goods on his own account Cosgrove, the barkeeper in the Eighty-eighth street place and in the South street place, swears he was employed by Mullins, and had never seen the defendant in ' either of said places. Furthermore, a lease of the Eighty-eighth street place in the name of Mullins is put in evidence.

To offset this testimony, tending to show that Mullins and not defendant was responsible for the goods, we have the conceded fact that at one time Mullins had a power of attorney from defendant to buy for him, and did so buy .goods and carry on business for the defendant, who was the brother-in-law of said Mullins. The latter had had financial difficulties, and it is the claim of plaintiff that Mullins carried on the business in the name of his brother-in-law, and that the latter held himself out as owner and became responsible for goods delivered upon the order of Mullins. After the delivery of the goods the defendant »notified plaintiff that he had revoked his power of attorney to Mullins. The defendant at first tried to deny that he had signed the letter in question; but it was admitted in evidence on consent of counsel. The plaintiff’s representative, Engel, swears that, after the delivery of the goods, defendant called at plaintiff’s place of business and asked to see his account; that Engel brought him a memorandum of his account, amounting to $432.63, the amount here sued for, and that defendant said, “ Well, that is not much. It is all right” This is denied by defendant, but the justice was at liberty to believe plaintiff’s witnesses. Defendant claimed that the power of attorney related only to his place at 83 Market street, and that he had nothing to do with the other places at which the goods were delivered. The power of attorney itself was not introduced in evidence. The plaintiff was given to understand that Mullins had authority to act for defendant in the purchase oi goods, and was not notified of any restrictions in this authority, and after the sale and delivery defendant said it was all right.”

This appeal is based wholly on the ground that the verdict is against the evidence. No motion was made at the close of the entire case for a dismissal of the complaint, and respondent urges that defendant, therefore, conceded that there was a question of fact for the determination of the justice.

The rule, however, obtaining in courts of record, that the defendant, by failing to move to dismiss, conceded that there is a question of fact, is not strictly enforced in appeals from the Municipal Court, and the Supreme Court would not regard such omission as an obstacle to a reversal, were the judgment clearly against the weight of evidence. In the case at bar, however, there appears to be sufficient testimony to sustain the conclusion reached by the learned court below.

Judgment affirmed, with costs.

Freedman, P. J., concurs.