Stewart v. Stern

New York Court of Common Pleas

Stewart v. Stern

12 Misc. 638, 66 N.Y. St. Rep. 669

DecidedApril 15, 1895

StatusPublished

This text of 12 Misc. 638 (Stewart v. Stern) is published on Counsel Stack Legal Research, covering New York Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Stewart v. Stern, 12 Misc. 638, 66 N.Y. St. Rep. 669 (N.Y. Super. Ct. 1895).

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Opinion

G-iegeeich, J.

The plaintiff’s appeal is based upon the erroneous theory that there was a sale and delivery to him, on credit, of the chattels sought to be replevied. The evidence, viewed in the most favorable light to the appellant, shows but a sale on condition that the plaintiff would bring a truck and a check for the purchase price of the same, and that he did return on the same day and make tender by check for the amount thereof, but which was refused. The evidence on- the part of the defendants, however, shows that there was a sale of the chattels in question conditioned that the plaintiff would immediately take away the goods and pay for the same, which condition he failed to comply with, and, upon his failure to do so, the chattels were sold to the defendants.

The justice credited the defendants’ version of the transaction, and we see no reason for disturbing his determination of the facts in the absence of the elements which are requisite to review the same. Lynes v. Hickey, 4 Misc. Rep. 522; 24 N. Y. Supp. 731; Weiss v. Strauss, 14 id. 776. The case, therefore, of Empire State T. F. Co. v. Grant, 114 N. Y. 40, cited by both sides, has no application, because there was no delivery in this case.

For these reasons the .judgment should be affirmed, with costs.

Bischoee, J., concurs.

Judgment affirmed, with costs.

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G-iegeeich, J.

The plaintiff’s appeal is based upon the erroneous theory that there was a sale and delivery to him, on credit, of the chattels sought to be replevied. The evidence, viewed in the most favorable light to the appellant, shows but a sale on condition that the plaintiff would bring a truck and a check for the purchase price of the same, and that he did return on the same day and make tender by check for the amount thereof, but which was refused. The evidence on- the part of the defendants, however, shows that there was a sale of the chattels in question conditioned that the plaintiff would immediately take away the goods and pay for the same, which condition he failed to comply with, and, upon his failure to do so, the chattels were sold to the defendants.

The justice credited the defendants’ version of the transaction, and we see no reason for disturbing his determination of the facts in the absence of the elements which are requisite to review the same. Lynes v. Hickey, 4 Misc. Rep. 522; 24 N. Y. Supp. 731; Weiss v. Strauss, 14 id. 776. The case, therefore, of Empire State T. F. Co. v. Grant, 114 N. Y. 40, cited by both sides, has no application, because there was no delivery in this case.

For these reasons the .judgment should be affirmed, with costs.

Bischoee, J., concurs.

Judgment affirmed, with costs.

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12 Misc. 638, 66 N.Y. St. Rep. 669, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stewart-v-stern-nyctcompl-1895.

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