Neier v. Looschen

25 Misc. 430, 54 N.Y.S. 931

• Court: City of New York Municipal Court
• Decided: December 15, 1898
• Status: Published

Opinion

Per Curiam.

This action was begun by the plaintiff as the assignee of the claims of three workmen to recover the value óf services rendered by them to the defendant Napoleon J. Haines, doing business as Haines & Co., between January 16, 1897, and January 30, 1897, and the value of services rendered by them to appellant Jared J. Looschen and defendant Haines as partners, doing business as Haines & Co., between January 16, 1897, and January 30, 1897, and the value of services rendered by them to appellant Jared J. Looschen and defendant Haines, as partners, doing business as Haines & Co., between February 1, 1897, and February 15, 1897. The defendant Napoleon J. Haines was engaged in the piano manufacturing business at One Hundred and Thirty-second street and Park avenue, New York city, from April, 1895, to January 30, 1897, under the name of Haines & Co. The defendant Haines was not served and this contest had reference only to the liability of the appellant for the value of these services.

The complaint contains six separate causes of action which may be divided into two classes:

1st. To cover the value of services rendered to defendant Haines, doing business as Haines & Co., which it is alleged the appellant, as a partner of the firm subsequently formed, agreed to pay;

2d. To cover the value of services rendered to appellant as partner of defendant Haines in February, 1897.

Evidence was adduced upon the trial to establish the fact that appellant had estopped himself by representations made to plaintiff’s assignors from denying that he was a partner; and, also, that he had assumed the payment of the indebtedness of Napoleon J. Haines.

The plaintiff called three witnesses who all testified substantially to the same facts, namely, that on or about January 30, 1897, the workmen declined to do any more work unless they were paid; thereupon, the appellant addressed the workmen, told them that he had come into the business with Mr. Haines; that Haines would attend to the outside work and appellant would attend to the inside work; that they would not stop work; that he was personally responsible, and that they would be paid every dollar that was owing to them. The workmen also testified that they continued working in reliance upon these representations of appellant.

The appellant was the only witness offered on his behalf. He contradicted the plaintiff’s witnesses in all the essential features of their testimony; whereupon the evidence was fairly submitted to the jury, and they found against the appellant for the services rendered after his alleged address to the workmen on January 30, 189Y; "but they found in his favor as to the indebtedness of the defendant Haines to the workmen prior to that date.

Counsel for the appellant raises several questions as to the correctness of the rulings of the trial justice. So far as these relate to the plaintiffs claim for work done before January 30th, they are interesting but unimportant, because the defendant prevailed as to that claim.

We find no error which contributed to the verdict, and our conclusion is that the judgment and order appealed from should be affirmed, with costs.

Present: McCarthy, Schuohman and Olcott, JJ.

Judgment and order affirmed, with costs.