Trow Directory, Printing & Bookbinding Co. v. Robinson

153 N.Y.S. 307

• Court: Appellate Terms of the Supreme Court of New York
• Decided: May 13, 1915
• Status: Published

Opinion

BIJUR, J.

Plaintiff sued for work, labor, and services in compiling a list of names of 5,000 individuals and multigraphing and addressing envelopes. The defendant, in addition to denials, counterclaim on the ground that the agreement with the plaintiff was to furnish the defendants with a list of business men who were rated from $1,000 to $10,000 in a certain mercantile agency report, and that the plaintiff failed to furnish such list, whereby they were damaged, by reason of postage used, etc., before the discrepancy was discovered.

The learned trial judge in rendering judgment said:

“The plaintiff’s complaint is dismissed upon the merits, and the counterclaim oí defendants is not allowed because defendants, while proving certain disbursements, did not satisfy me that they had not received any benefits therefrom or that they were damaged to the extent of such disbursements.”

Since the court dismissed the complaint on the merits, it should have found that the plaintiff did not fulfill its contract; therefore the defendants were entitled to their damages. See Rapid Addressing Machine Co. v. Benson, 133 N. Y. Supp. 1053.

As therefore the whole case seems to have been tried on an erroneous theory, I think that the interests of justice require that the entire judgment should be reversed, and the case sent back for a new trial, without costs of this appeal. All concur.