Mack v. Koss

Appellate Division of the Supreme Court of New York

Mack v. Koss

41 A.D.2d 966, 343 N.Y.S.2d 998, 1973 N.Y. App. Div. LEXIS 4345

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 29, 1973

StatusPublished

This text of 41 A.D.2d 966 (Mack v. Koss) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mack v. Koss, 41 A.D.2d 966, 343 N.Y.S.2d 998, 1973 N.Y. App. Div. LEXIS 4345 (N.Y. Ct. App. 1973).

Pincite

Opinion

In an action to recover damages for breach of contract, defendant appeals from a judgment of the Supreme Court, Kings County, entered May 31, 1972 in favor of plaintiff Sue Ellen Mack, after a nonjury trial. Judgment reversed, on the law, and new trial granted, with [967]*967costs to appellant to abide the event. The appeal did not present questions of fact. On December 14, 1967 defendant, a stockbroker, sold 400 shares of stock for plaintiff Sue Ellen Mack and thereafter paid the proceeds to a third party instead of to her. She and her husband sued for the proceeds. In an attempt to show that the plaintiff husband, acting as his wife’s agent, had orally authorized payment to the third party, defendant sought to read in evidence portions of the depositions given by plaintiffs in examinations before trial and also to elicit testimony from a witness as to a conversation he had overheard between defendant and the plaintiff husband on the day of the sale. The trial court refused to allow that in evidence and, in our opinion, this was error requiring a new trial. Shapiro, Acting P. J., Gulotta, Christ, Brennan and Benjamin, JJ., concur.

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In an action to recover damages for breach of contract, defendant appeals from a judgment of the Supreme Court, Kings County, entered May 31, 1972 in favor of plaintiff Sue Ellen Mack, after a nonjury trial. Judgment reversed, on the law, and new trial granted, with [967]*967costs to appellant to abide the event. The appeal did not present questions of fact. On December 14, 1967 defendant, a stockbroker, sold 400 shares of stock for plaintiff Sue Ellen Mack and thereafter paid the proceeds to a third party instead of to her. She and her husband sued for the proceeds. In an attempt to show that the plaintiff husband, acting as his wife’s agent, had orally authorized payment to the third party, defendant sought to read in evidence portions of the depositions given by plaintiffs in examinations before trial and also to elicit testimony from a witness as to a conversation he had overheard between defendant and the plaintiff husband on the day of the sale. The trial court refused to allow that in evidence and, in our opinion, this was error requiring a new trial. Shapiro, Acting P. J., Gulotta, Christ, Brennan and Benjamin, JJ., concur.

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Bluebook (online)

41 A.D.2d 966, 343 N.Y.S.2d 998, 1973 N.Y. App. Div. LEXIS 4345, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mack-v-koss-nyappdiv-1973.