Stone v. Schlesinger

Appellate Terms of the Supreme Court of New York

Stone v. Schlesinger

110 N.Y.S. 852

CourtAppellate Terms of the Supreme Court of New York

DecidedJune 3, 1908

StatusPublished

This text of 110 N.Y.S. 852 (Stone v. Schlesinger) 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

Stone v. Schlesinger, 110 N.Y.S. 852 (N.Y. Ct. App. 1908).

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Opinion

PER CURIAM.

The theory on which the justice decided in favor of the plaintiff is not clear from the record. The plaintiff testified that he did not know the contents of the receipt he signed for part payment under the contract, and which was put in evidence as Defendants’ Exhibit A. That paper contained the following sentence r

“I am not entitled to receive any balance or further payments for said work unless I procure and deliver to Schlesinger & Isenberg dismissal certificates from' the tenement house department of the city of New York on iron and fire escapes work at 305 to 311 E. 71st St. and 525 1st Ave. only.”

At an advanced stage of the trial, and after this paper was placed' in evidence, and the portion of it above quoted read into the record, the trial justice remarked that there was no proof of tenement house violations, except the statement of the defendant Schlesinger, who-was on the stand testifying at the time. Erom that observation, made at that stage of the trial, it would appear that the trial justice over[853]*853looked the significance of the virtual admission, contained in the signed statement by the plaintiff, that there were violations and that he was to “procure and deliver” certificates of dismissal thereof to defendants.

Much attention is given in the briefs on both sides to the refusal ■of the trial justice to grant the defendants’ application for a suspension of the trial in order to allow an opportunity to procure the records of the tenement house department to prove the existence of such violations, which the defendants could not produce because of the failure of the official in the tenement house department subpoenaed to produce them fully to obey the subpoena. From the entire record it would seem that the learned justice fell into error in overlooking the significance of the documentary evidence adverted to and the importance to defendants, if plaintiff’s testimony as to his ignorance of the contents of the receipt was to be believed, to be permitted affirmatively to prove that the violations had not been removed. The inference to be drawn from the record is that the court regarded the existence of the violations as material, but unproven; and we are of the opinion that the interests of justice require a reversal of the judgment.

Judgment reversed, and new trial ordered, with costs to appellants to abide the event.

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PER CURIAM.

The theory on which the justice decided in favor of the plaintiff is not clear from the record. The plaintiff testified that he did not know the contents of the receipt he signed for part payment under the contract, and which was put in evidence as Defendants’ Exhibit A. That paper contained the following sentence r

“I am not entitled to receive any balance or further payments for said work unless I procure and deliver to Schlesinger & Isenberg dismissal certificates from' the tenement house department of the city of New York on iron and fire escapes work at 305 to 311 E. 71st St. and 525 1st Ave. only.”

At an advanced stage of the trial, and after this paper was placed' in evidence, and the portion of it above quoted read into the record, the trial justice remarked that there was no proof of tenement house violations, except the statement of the defendant Schlesinger, who-was on the stand testifying at the time. Erom that observation, made at that stage of the trial, it would appear that the trial justice over[853]*853looked the significance of the virtual admission, contained in the signed statement by the plaintiff, that there were violations and that he was to “procure and deliver” certificates of dismissal thereof to defendants.

Much attention is given in the briefs on both sides to the refusal ■of the trial justice to grant the defendants’ application for a suspension of the trial in order to allow an opportunity to procure the records of the tenement house department to prove the existence of such violations, which the defendants could not produce because of the failure of the official in the tenement house department subpoenaed to produce them fully to obey the subpoena. From the entire record it would seem that the learned justice fell into error in overlooking the significance of the documentary evidence adverted to and the importance to defendants, if plaintiff’s testimony as to his ignorance of the contents of the receipt was to be believed, to be permitted affirmatively to prove that the violations had not been removed. The inference to be drawn from the record is that the court regarded the existence of the violations as material, but unproven; and we are of the opinion that the interests of justice require a reversal of the judgment.

Judgment reversed, and new trial ordered, with costs to appellants to abide the event.

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Bluebook (online)

110 N.Y.S. 852, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stone-v-schlesinger-nyappterm-1908.