Gross v. Nitschke

Appellate Terms of the Supreme Court of New York

Gross v. Nitschke

111 N.Y.S. 511

CourtAppellate Terms of the Supreme Court of New York

DecidedJune 30, 1908

StatusPublished

This text of 111 N.Y.S. 511 (Gross v. Nitschke) 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

Gross v. Nitschke, 111 N.Y.S. 511 (N.Y. Ct. App. 1908).

Pincite

Opinion

PER CURIAM.

This action was brought originally against Mueller, Nitschlce, and Langer; the complaint alleging that Nitschlce and Mueller were copartners prior to October 10, 1907, and that thereafter Langer became a member of such firm. On October 10 and November [512]*51216, 1907, and January 28, 1908, plaintiff alleges in the complaint he sold and delivered to defendants certain liquors, of the value of $155, which allegation was denied by the defendants. The defendant Nitschke was not served, and did not appear in the action. The action as against Danger was discontinued at the opening of the trial, and the plaintiff attempted to sustain his claim against Mueller alone. The result of the trial was a judgment in favor of the defendant.

It is undisputed that Mueller and Nitschke entered into a partnership by written articles on April 26, 1905. By the terms of this agreement the partnership was to continue one year. Nitschke, who was called as a witness by the plaintiff, testified that such partnership was not renewed at the end of the year. The plaintiff testified that he sold a package of brandy, of the value of $106.25, to Nitschke, “with the understanding, as Mr. Nitschke had always explained to me, that he had received the backing, and that Mr. Geo. Mueller was a partner in the concern.” When this sale took place, where or to whom delivery of the brandy, if any, was made, or to whom plaintiff gave the credit, was not shown. Nor was it shown that by any prior dealings had with Nitschke the plaintiff was led to believe, or had knowledge, that Mueller was in partnership with him. From reading the testimony it would seem that the sale was evidently made after the expiration of the time set for the termination -of the partnership, and the issue tried was whether or not Mueller continued to sustain the relation of partner with Nitschke after the end of the year named in their articles of agreement. We need not now discuss this question, because, as before stated, the plaintiff utterly failed to prove a delivery of the goods sold to any person, and the judgment as rendered was correct, except that it should have been entered as without prejudice to a new trial; the plaintiff having failed in his proof.

Judgment modified, by inserting therein the words “without prejudice to a new trial,” and, as modified, affirmed, with $15 costs to the appellant.

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PER CURIAM.

This action was brought originally against Mueller, Nitschlce, and Langer; the complaint alleging that Nitschlce and Mueller were copartners prior to October 10, 1907, and that thereafter Langer became a member of such firm. On October 10 and November [512]*51216, 1907, and January 28, 1908, plaintiff alleges in the complaint he sold and delivered to defendants certain liquors, of the value of $155, which allegation was denied by the defendants. The defendant Nitschke was not served, and did not appear in the action. The action as against Danger was discontinued at the opening of the trial, and the plaintiff attempted to sustain his claim against Mueller alone. The result of the trial was a judgment in favor of the defendant.

It is undisputed that Mueller and Nitschke entered into a partnership by written articles on April 26, 1905. By the terms of this agreement the partnership was to continue one year. Nitschke, who was called as a witness by the plaintiff, testified that such partnership was not renewed at the end of the year. The plaintiff testified that he sold a package of brandy, of the value of $106.25, to Nitschke, “with the understanding, as Mr. Nitschke had always explained to me, that he had received the backing, and that Mr. Geo. Mueller was a partner in the concern.” When this sale took place, where or to whom delivery of the brandy, if any, was made, or to whom plaintiff gave the credit, was not shown. Nor was it shown that by any prior dealings had with Nitschke the plaintiff was led to believe, or had knowledge, that Mueller was in partnership with him. From reading the testimony it would seem that the sale was evidently made after the expiration of the time set for the termination -of the partnership, and the issue tried was whether or not Mueller continued to sustain the relation of partner with Nitschke after the end of the year named in their articles of agreement. We need not now discuss this question, because, as before stated, the plaintiff utterly failed to prove a delivery of the goods sold to any person, and the judgment as rendered was correct, except that it should have been entered as without prejudice to a new trial; the plaintiff having failed in his proof.

Judgment modified, by inserting therein the words “without prejudice to a new trial,” and, as modified, affirmed, with $15 costs to the appellant.

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111 N.Y.S. 511, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gross-v-nitschke-nyappterm-1908.