V. Loewer's Gambrinus Brewing Co. v. Kuku

50 Misc. 664, 99 N.Y.S. 480

• Court: Appellate Terms of the Supreme Court of New York
• Decided: May 15, 1906
• Status: Published

Opinion

Gildersleeve, J.

The complaint alleged a sale and delivery to the defendant of twenty-four half-barrels of beer, valued at ninety-six dollars, and the answer expressly denied the same. Upon the trial the treasurer and the president of the plaintiff testified that the defendant ordered the delivery of a certain quantity of beer at the corner of Thirty-seventh street and Tenth avenue, and they both testified, in general terms, that “ we delivered it,” although it was not shown that either had any personal knowledge that such delivery was made. The delivery was claimed to have been made between September 3rd and September 8th in 1903. The defendant denied the ordering of the beer or its delivery. All testimony offered by him, tending to show that he was not the owner or in possession of or carrying on business at comer of Thirty-Seventh street and Tenth avenue, and proof that other parties were engaged in business at that .place and that those parties ordered the beer in question of the plaintiff in September, 1903, was excluded by the trial judge upon objection by plaintiff’s attorney. This was error; such evidence bore strongly upon the probability of the tmth of the defendant’s statement that he had not ordered the beer and was not liable therefor, and should have been admitted. Moreover, the evidence of delivery to the defendant, in view of his emphatic denial, should have been much more certain in order to warrant a judgment for the plaintiff.

Davis and Clutch, JJ., concur.

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