MacDonald v. Hamilton B. Wills & Co.

210 A.D. 811

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 15, 1924
• Status: Published

Opinion

Per Curiam:

Whether there was a statutory presumption, applicable to a civil case, arising out of failure to comply with the demand under section 392 of the Penal Law, or whether the burden of going forward with the evidence was otherwise cast on the defendant seems immaterial. If that burden did not rest on defendant under section 392, it did so rest under the broader rule that very slight evidence produced by the plaintiff will cast that burden upon defendant. (Perine v. Elmira, Corning & Waverly Railway, 184 App. Div. 814; Mullen v. Quinlan & Co., 195 N. Y. 109; Prout v. Chisolm, 89 Hun,108,112.) Such evidence exists here by inferences to be drawn from defendant’s failure to comply with section 957 of the Penal Law and from the testimony of plaintiff as to occasions when he wished to take up stocks and was put off by conflicting stories. Whether the evidence of defendant successfully met that burden was, under the facts here, a question for the jury. (Greenhall v. Davis, 190 App. Div. 632; Powers v. Wilson, 203 id. 232, 235.) Moreover, we think that in view of Exhibits 10 and 12 and the failure of defendant to put in evidence the contract between itself and Wills, there wras enough to show that the promise of defendant to assume the liabilities of Wills was made for the benefit of plaintiff among others. As the new company was to “ own the entire assets ” of Wills, presumably that portion of the assets which had been derived from the plaintiff was turned over to the corporation. The judgment and order should be affirmed, with costs. All concur, except Sears, J., who dissents and votes for reversal; Hubbs, P. J., not sitting. Judgment and order affirmed, with costs.