Sulzbacher v. Davison

2 Jones & S. 145

• Court: The Superior Court of New York City
• Decided: December 31, 1871
• Status: Published

Opinion

By the Court.—Jones, J.

I am in favor of reversing the judgment and ordering a new trial.

There was error in dismissing the complaint. The court, in granting the motion, necessarily held that there was either no evidence of a sale, or no evidence either that defendant carried on business in her own name, or that the debt was contracted in relation to her business. Having held there was no evidence, there was, of course, nothing in view taken by the court to submit to the jury.

The court did not decide on the assumption that certain facts were proved, which would have brought the case within Bidwell v. Lamont, 17 How. Pr. 357, but on the ground that there was no evidence of certain facts, which is an entirely different thing.

Even under the cases of Bidwell v. Lamont, and Marine Bank v. Clements, 31 N. Y. 33, we can only infer, in support of the decision, those conclusions which the jury would have been warranted to draw ; and, from the evidence in the case, we think the jury would not be warranted in finding that the defendant did not carry on business in her own name, or that the articles were not purchased and furnished for that business. Such a finding would have been against the evidence.