Tuthill v. Smith

Appellate Terms of the Supreme Court of New York

Tuthill v. Smith

88 N.Y.S. 942

CourtAppellate Terms of the Supreme Court of New York

DecidedJune 23, 1904

StatusPublished

This text of 88 N.Y.S. 942 (Tuthill v. Smith) 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

Tuthill v. Smith, 88 N.Y.S. 942 (N.Y. Ct. App. 1904).

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Opinion

MacLEAN, J.

In an action brought for a balance due upon an alleged agreement of somewhat unusal sort to pay the plaintiff, an employé, a commission on monthly profits, the testimony of the two parties being contradictory, the balance was .apparently turned by exhibiting entries in the defendant’s books kept by the plaintiff and a fellow employé on the assumption of defendant’s acquiescence by nonrepudiation of these entries; but the defendant was not allowed to show in contradiction of such assumed acquiescence what he said to the fellow employé who made the entries, although the employé was asked upon the stand as to the conversation, and denied altogether that there was such a conversation. For this error judgment must be reversed, without passing upon the question whether plaintiff could recover for an item allowed him contrary to his bill of particulars.

Judgment reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.

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MacLEAN, J.

In an action brought for a balance due upon an alleged agreement of somewhat unusal sort to pay the plaintiff, an employé, a commission on monthly profits, the testimony of the two parties being contradictory, the balance was .apparently turned by exhibiting entries in the defendant’s books kept by the plaintiff and a fellow employé on the assumption of defendant’s acquiescence by nonrepudiation of these entries; but the defendant was not allowed to show in contradiction of such assumed acquiescence what he said to the fellow employé who made the entries, although the employé was asked upon the stand as to the conversation, and denied altogether that there was such a conversation. For this error judgment must be reversed, without passing upon the question whether plaintiff could recover for an item allowed him contrary to his bill of particulars.

Judgment reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.

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Bluebook (online)

88 N.Y.S. 942, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tuthill-v-smith-nyappterm-1904.