Hirshman v. H. D. Best Co.

125 N.Y.S. 476

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 11, 1910
• Status: Published

Opinion

BIJUR, J..

Plaintiff sued for the contract price of certain bricks delivered to defendant. Defendant alleged breach of contract and a consequent set-off.

The substantial question litigated was whether plaintiff had refused to .make further deliveries, or whether defendant had refused to accept deliveries, and thus had broken the contract. On this point the only competent testimony was that given by the plaintiff covering, an interview with the defendant, every material item of which was denied by the defendant. ■ Plaintiff was permitted, over defendant’s objection and exception, to introduce the evidence of two of his drivers as to conversations had with a person who subsequently turned out to be a mere timekeeper in defendant’s employ, and who was said to have refused to accept the deliveries. There is no claim or evidence that this timekeeper was specially authorized by defendant to refuse the deliveries, and such refusal did not fall within the general scope of his duties.

As the whole case turned upon the one question whether delivery was refused by defendant, and since the competent evidence on this point was evenly balanced as between the plaintiff and defendant, it must be assumed that the evidence improperly admitted affected the trial judge’s determination.

There are other assignments of error which seem to be good; but they need not be considered, in view of the conclusion at which I have arrived on the one issue.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.