Schultz v. Berger

Appellate Terms of the Supreme Court of New York

Schultz v. Berger

31 Misc. 764, 64 N.Y.S. 686

CourtAppellate Terms of the Supreme Court of New York

DecidedMay 15, 1900

StatusPublished

This text of 31 Misc. 764 (Schultz v. Berger) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Schultz v. Berger, 31 Misc. 764, 64 N.Y.S. 686 (N.Y. Ct. App. 1900).

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Opinion

Per Curiam.

This is an. appeal by the defendant Carrie Berger from a judgment rendered against her in a Municipal Court. The pleadings were oral, and the complaint was for goods sold and delivered. It was sought to hold the defendants jointly, but it was not in terms alleged that they were partners, or that the defendant Max Berger acted as agent for his wife. The plaintiff did not produce any evidence of a partnership between the defendants, and it appeared that he had for a long time sold goods to the defendant Max Berger and rendered bills to him under the name of M. E. Berger, the bill of particulars in this very case being in the form of a bill against M. E. Berger. Both defendants swore positively that there was no partnership between them, each pursuing a separate business. While some of the circumstances under which the business was carried on, coupled with the relationship of the parties, warrant a suspicion that they may really be copartners, there is no proof of the fact, and a mere suspicion cannot be allowed to prevail against their positive and uncontradicted testimony. There was no evidence to justify a judgment against the appellant Carrie Berger and as to her the judgment must be reversed and a new trial ordered, with costs to her to abide the event.

Judgment as to Max Berger affirmed, with costs.

Present: Tbttax, P. J., Scott and Dugbo, JJ.

Judgment reversed as to appellant Carrie Berger and new trial ordered, with costs to abide event. Judgment as to Max Berger affirmed, with costs.

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Per Curiam.

This is an. appeal by the defendant Carrie Berger from a judgment rendered against her in a Municipal Court. The pleadings were oral, and the complaint was for goods sold and delivered. It was sought to hold the defendants jointly, but it was not in terms alleged that they were partners, or that the defendant Max Berger acted as agent for his wife. The plaintiff did not produce any evidence of a partnership between the defendants, and it appeared that he had for a long time sold goods to the defendant Max Berger and rendered bills to him under the name of M. E. Berger, the bill of particulars in this very case being in the form of a bill against M. E. Berger. Both defendants swore positively that there was no partnership between them, each pursuing a separate business. While some of the circumstances under which the business was carried on, coupled with the relationship of the parties, warrant a suspicion that they may really be copartners, there is no proof of the fact, and a mere suspicion cannot be allowed to prevail against their positive and uncontradicted testimony. There was no evidence to justify a judgment against the appellant Carrie Berger and as to her the judgment must be reversed and a new trial ordered, with costs to her to abide the event.

Judgment as to Max Berger affirmed, with costs.

Present: Tbttax, P. J., Scott and Dugbo, JJ.

Judgment reversed as to appellant Carrie Berger and new trial ordered, with costs to abide event. Judgment as to Max Berger affirmed, with costs.

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Bluebook (online)

31 Misc. 764, 64 N.Y.S. 686, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schultz-v-berger-nyappterm-1900.