Katz v. Weir

Appellate Terms of the Supreme Court of New York

Katz v. Weir

115 N.Y.S. 113

CourtAppellate Terms of the Supreme Court of New York

DecidedMarch 5, 1909

StatusPublished

This text of 115 N.Y.S. 113 (Katz v. Weir) 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

Katz v. Weir, 115 N.Y.S. 113 (N.Y. Ct. App. 1909).

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Opinions

GILDERSLEEVE, P. J.

The plaintiffs claim to have delivered certain goods to defendant’s express company for transportation, and that said goods were never delivered at their destination, and have been lost. The defendant denies that any such goods were ever delivered by plaintiffs to defendant. The court dismissed the com.plaint on the merits, and from the judgment entered thereon plaintiffs appeal.

The plaintiffs show a receipt for the goods in th¿ usual form of defendant’s receipts, and, apparently, taken from a regular receipt book of defendant’s express company. The plaintiffs also show that the goods were delivered to some person assuming charge of an express wagon which bore on its side the name of Adams Express Company. To offset this defendant proved that it had no record of receiving such goods and that none of the drivers who usually went over that route signed the receipts or recollected receiving the goods. This signature on the receipt consists of initials so imperfectly written that it is practically impossible to decipher them. One of the drivers testified, on cross-examination, that sometimes other parties than the drivers and the helpers went with the wagon and signed the receipts, and that sometimes the receipts were signed by the clerks in the office. Defendant unsuccessfully endeavored to trace the goods. One of the plaintiffs testified that he gave the goods to the boy to take to the express office. It also appears that all other shipments were made directly from plaintiffs’ place of business or from defendant’s office. Defendant’s witnesses showed the names of the men in charge of defendant’s wagon on September 13th, the day of the alleged de[114]*114livery, each one of whom denied the signature on the receipt, and which was unknown to defendant.' Plaintiffs’ messenger disobeyed instructions, even if he told the truth as.to the claimed, shipping of the package through a person said to be on defendant’s .w.agon, but in no-Other way identified-with defendant. The proofs were insufficient to establish a contract, and the complaint was therefore properly dismissed.

The judgment- is affirmed," with costs. " "

DAYTON, J., concurs.

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GILDERSLEEVE, P. J.

The plaintiffs claim to have delivered certain goods to defendant’s express company for transportation, and that said goods were never delivered at their destination, and have been lost. The defendant denies that any such goods were ever delivered by plaintiffs to defendant. The court dismissed the com.plaint on the merits, and from the judgment entered thereon plaintiffs appeal.

The plaintiffs show a receipt for the goods in th¿ usual form of defendant’s receipts, and, apparently, taken from a regular receipt book of defendant’s express company. The plaintiffs also show that the goods were delivered to some person assuming charge of an express wagon which bore on its side the name of Adams Express Company. To offset this defendant proved that it had no record of receiving such goods and that none of the drivers who usually went over that route signed the receipts or recollected receiving the goods. This signature on the receipt consists of initials so imperfectly written that it is practically impossible to decipher them. One of the drivers testified, on cross-examination, that sometimes other parties than the drivers and the helpers went with the wagon and signed the receipts, and that sometimes the receipts were signed by the clerks in the office. Defendant unsuccessfully endeavored to trace the goods. One of the plaintiffs testified that he gave the goods to the boy to take to the express office. It also appears that all other shipments were made directly from plaintiffs’ place of business or from defendant’s office. Defendant’s witnesses showed the names of the men in charge of defendant’s wagon on September 13th, the day of the alleged de[114]*114livery, each one of whom denied the signature on the receipt, and which was unknown to defendant.' Plaintiffs’ messenger disobeyed instructions, even if he told the truth as.to the claimed, shipping of the package through a person said to be on defendant’s .w.agon, but in no-Other way identified-with defendant. The proofs were insufficient to establish a contract, and the complaint was therefore properly dismissed.

The judgment- is affirmed," with costs. " "

DAYTON, J., concurs.

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Bluebook (online)

115 N.Y.S. 113, Counsel Stack Legal Research, https://law.counselstack.com/opinion/katz-v-weir-nyappterm-1909.