O'Brien v. Gallagher

26 Misc. 838, 57 N.Y.S. 250

• Court: Appellate Terms of the Supreme Court of New York
• Decided: March 15, 1899
• Status: Published

Opinion

Leventritt, J.

This is an action for goods sold and delivered. It is conceded by the appellant that there is no question in the case as to the order for the goods, their delivery or quality, and that the only point in dispute is the reasonable price or market value of the goods furnished. The plaintiff's contended that the amount claimed by them represented the fair market value; the defendant insisted on a lower figure. The justice accepted the plaintiffs’ standard of value, and there being no indication of any unfairness or injustice, we cannot reverse his finding, unless he erroneously excluded testimony offered by the defendant on the subject of value which, if admitted, might have led him to accept the defendant’s standard.

The defendant offered in evidence a letter received from a dealer, in answer to his inquiry respecting market price. The defendant urges that the exclusion of this letter was error, and relies on the case of Harrison v. Glover, 72 N. Y. 451, in support of his contention. An examination of that case discloses that there the plaintiff employed the defendant to sell blankets at a price not less than that of a certain manufacturing corporation. The letter from that corporation, similar in character to the one under consideration, became competent, solely as a part of the test which the parties had adopted by their special contract, and cannot be invoked as authority against the rule which declares hearsay evidence incompetent. Hine v. Manhattan R. Co., 132 N. Y. 477.

The judgment must, therefore, be affirmed.

Freedman, P. J., concurs; MacLean, J., taking no part.

Judgment affirmed, with costs to respondents.