Muhlstein v. Hertzberg

85 N.Y.S. 1075

• Court: Appellate Terms of the Supreme Court of New York
• Decided: January 7, 1904
• Status: Published

Opinion

PER CURIAM.

Plaintiff, in her verified complaint and in a bill of particulars filed herein, claimed and recovered a judgment for $69.20 for goods sold and delivered to the defendant between January 2 and January 24, 1903. The answer was a general denial and a claim that some of the goods were not according to sample and that the others were not ordered. Plaintiff was not sworn, but relied upon the testimony of her husband, who testified that he managed the business, but who was not allowed to testify whether he was the real party in interest or not. The proof to warrant a judgment for the full amount, if any at all, is very unsatisfactory. Plaintiff relies-materially upon certain receipts claimed to have been signed by defendant, but disputed by him, consisting of Exhibits Nos. 1, 2, and 3.. Exhibit No. 1 amounts to $26.25,. Exhibit No. 2 amounts to $15.45, Exhibit No. 3 amounts to $21.25. This aggregates but $62.95. The bill of particulars claims one item, No. 72, valued at $5, of which nothing appears either in the receipt or in the testimony. It also appears that on January 4, 1903, a bill amounting to $29.60' was presented to defendant, and that on January 20, 1903, he gave plaintiff’s husband a check for $13.35, which was paid. Whether or not the items in the bill of January 4, 1903, were the same as shown in the receipts, or whether or not the payment of $13.35 was for the items shown in the receipts, does not clearly appear. The plaintiff’s claim Js contradicted in several important points by the defendant and his witnesses, and, in view of all the facts and circumstances, the interests of justice require that a new trial should be granted.

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