Hegedorn Bros. v. O'Rourke

134 N.Y.S. 528

• Court: Appellate Terms of the Supreme Court of New York
• Decided: April 9, 1912
• Status: Published

Opinion

GUY, J.

Plaintiff appeals from a judgment dismissing its complaint in an action brought to recover the value of a quantity of coal alleged to have been sold and delivered by plaintiff to defendants. The answer is a general denial, and an averment that the coal in question was purchased from one Schroeder, and that payment had been made to Schroeder therefor. Plaintiff proved the acceptance by it of an order for the coal given by defendants through Schroeder,_ who • had for several years acted as its agent, on commission, to obtain orders; that it delivered the coal directly to defendant Charles O’Rourke; that it was receipted for by'the defendant Mary O’Rourke, wife of the defendant Charles O’Rourke, on printed receipts bearing plaintiff’s name and business address; and that subsequently, on demand by plaintiff, defendants refused to pay for the coal, stating that they had paid Schroeder. No authority was shown in Schroeder to collect moneys for plaintiff. On this evidence, without requiring any proof for the defense, the court dismissed the complaint. The plaintiff having made out a prima facie case, this ruling was erroneous.

The judgment must therefore be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.