Smith v. McElwee

Appellate Terms of the Supreme Court of New York

Smith v. McElwee

35 Misc. 787, 72 N.Y.S. 1129

CourtAppellate Terms of the Supreme Court of New York

DecidedJune 15, 1901

StatusPublished

This text of 35 Misc. 787 (Smith v. McElwee) 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

Smith v. McElwee, 35 Misc. 787, 72 N.Y.S. 1129 (N.Y. Ct. App. 1901).

Pincite

Opinion

Per Curiam.

The one issue in the case was whether or not the goods, for the price of which the action is brought, were sold to the defendant, or to a corporation known as F. D. Anthony Company. It appears that there were two concerns having similar names, one a firm known as F. D. Anthony and Company, the other a corporation known as F. D. Anthony Company. There was no claim that the goods had been sold to the firm, and consequently the question whether the plaintiff had refused to give credit to the firm of F. D. Anthony & Co. was irrelevant. If the inquiry had been whether previous to the sales involved in this action he had refused credit to the- corporation a different question would have been presented. The question whether the corporation was solvent was irrelevant, because unless knowledge or notice of its insolvency was brought home to plaintiff before or at the time the sales were made, the fact could throw no light upon the question as to whom he intended to make the sale. The certificate of incorporation was at the most immaterial and its admission cannot have hurt plaintiff, since the fact of the incorporation of the company had already been testified to by one [788]*788of its officers. The verdict was justified by the evidence, and the judgment should not be disturbed.

Present: Scott, P. J., Beach and Fitzgerald, JJ.

Judgment affirmed, with costs.

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Per Curiam.

The one issue in the case was whether or not the goods, for the price of which the action is brought, were sold to the defendant, or to a corporation known as F. D. Anthony Company. It appears that there were two concerns having similar names, one a firm known as F. D. Anthony and Company, the other a corporation known as F. D. Anthony Company. There was no claim that the goods had been sold to the firm, and consequently the question whether the plaintiff had refused to give credit to the firm of F. D. Anthony & Co. was irrelevant. If the inquiry had been whether previous to the sales involved in this action he had refused credit to the- corporation a different question would have been presented. The question whether the corporation was solvent was irrelevant, because unless knowledge or notice of its insolvency was brought home to plaintiff before or at the time the sales were made, the fact could throw no light upon the question as to whom he intended to make the sale. The certificate of incorporation was at the most immaterial and its admission cannot have hurt plaintiff, since the fact of the incorporation of the company had already been testified to by one [788]*788of its officers. The verdict was justified by the evidence, and the judgment should not be disturbed.

Present: Scott, P. J., Beach and Fitzgerald, JJ.

Judgment affirmed, with costs.

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Bluebook (online)

35 Misc. 787, 72 N.Y.S. 1129, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-mcelwee-nyappterm-1901.