Sloan v. Van Wyck

36 Barb. 335, 1862 N.Y. App. Div. LEXIS 30

• Court: New York Supreme Court
• Decided: February 3, 1862
• Status: Published

Opinion

By the Court,

Clebke, P. J.

If Van Wyck is liable at all, it is on the ground of an original promise. The machine, for the making of which this action is brought, was ordered in the first instance by Green, who was the owner of a Kittle’s machine, and some tools which he had, on premises rented by him in 22d street. This machine was ordered, to enable him to effectuate the interest which he had in the patent right in that machine for the cities of New York and Brooklyn. After the machine was ordered, Green sold to Van Wyck his interest in the lease of the building in 22d street, with the tools and machines therein, and also his interest in the patent right in Kittle’s invention. This was on the 17th of November, 1850. Before the commencement of the work, according to the testimony of Schwartz, Green called on him, accompanied by Van Wyck, and stated that he had sold out his interest to Van Wyck, who assented to the statement. After this, the plaintiff proceeded with the machine and completed it.

Although the machine was, in the first instance, ordered by Green, yet if Van Wyck expressly or impliedly directed the plaintiffs to complete it, and if they delivered it to Van Wyck, the latter is liable to pay for the work; and the plaintiffs having chosen to charge Van Wyck, and having delivered it to him, had no claim against Green.

The questions of fact, upon which these propositions depend, were fairly put to the jury; and I see nothing, in this respect, in the judge’s charge, of which the defendant can complain.

The complaint contains a great deal of unnecessary matter; but, however inconsistent with the general allegations some of the statements, which are mere recitals of evidence, may be, yet those general allegations contain enough to sustain a claim for work and labor; and the judge properly refused to dismiss the complaint on the ground that it did not show an original promise.

As to the taking back of the machine by the plaintiffs, after it was delivered to Van Wyck, the judge expressly charged the jury “ if the plaintiffs intended to take the machine as a substitute for his debt, and to relieve the defendant from all liability, then they could not claim for it in this suit; but if they merely took it for the purpose of making a sale on account of Van Wyck, then it was not a circumstance which prevents their recovering.” This question could not be left to the jury in clearer terms.

[New York General Term, February 3, 1862.

Ingraham, Leonard, and Clerhe, Justices.]

On the whole, I see no reason why the verdict should be disturbed.

The judgment should be affirmed, with costs.