Willis v. Smith

Appellate Terms of the Supreme Court of New York

Willis v. Smith

127 N.Y.S. 460

CourtAppellate Terms of the Supreme Court of New York

DecidedFebruary 9, 1911

StatusPublished

This text of 127 N.Y.S. 460 (Willis 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

Willis v. Smith, 127 N.Y.S. 460 (N.Y. Ct. App. 1911).

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Opinion

DELANY, J.

This action is brought to recover the value of certain cloth, which the plaintiffs caused to be delivered to the defendant, to be conveyed to the place of business of a customer in Brooklyn. The defendant was engaged in the express business under the name of Van Nostrand’s Express, and one of his employés called at a warehouse and obtained a bale of merchandise alleged to contain 25 double cuts of cloth. This bale the defendant claims was delivered to the firm to which it was consigned; but the latter denies ever having received it, and on that branch of the case the conflict of evidence is so pronounced that the learned justice’s finding cannot be disturbed.

[461]*461The case brings up several questions. For the purpose of this appeal, however, but a few elements of the proof need be considered. First, beyond the fact that the bale referred to was delivered to the defendant, there is no proof of the quantity or quality of the material contained in the burlap which covered it, and what there may be of testimony as to its value is of no avail, because it refers to the price per pard, when the actual yardage was not determined, and it was given by a witness who was not competent to testify. This witness was the credit man, whose duties we assume were to pass upon the financial responsibility of those who purchased goods from the plaintiffs. He had never bought or sold goods. He had seen goods sold, and knew that the plaintiffs’ firm had marked its goods according to the market price. He was not a stock man. Over objection and exception to his qualifications as an expert as to value, the trial justice allowed his testimony. This was error (Dolan v. Herring-Hall-Marvin Safe Co., 105 App. Div. 370, 371, 94 N. Y. Supp. 341); and the complaint should have been dismissed'.

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

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DELANY, J.

This action is brought to recover the value of certain cloth, which the plaintiffs caused to be delivered to the defendant, to be conveyed to the place of business of a customer in Brooklyn. The defendant was engaged in the express business under the name of Van Nostrand’s Express, and one of his employés called at a warehouse and obtained a bale of merchandise alleged to contain 25 double cuts of cloth. This bale the defendant claims was delivered to the firm to which it was consigned; but the latter denies ever having received it, and on that branch of the case the conflict of evidence is so pronounced that the learned justice’s finding cannot be disturbed.

[461]*461The case brings up several questions. For the purpose of this appeal, however, but a few elements of the proof need be considered. First, beyond the fact that the bale referred to was delivered to the defendant, there is no proof of the quantity or quality of the material contained in the burlap which covered it, and what there may be of testimony as to its value is of no avail, because it refers to the price per pard, when the actual yardage was not determined, and it was given by a witness who was not competent to testify. This witness was the credit man, whose duties we assume were to pass upon the financial responsibility of those who purchased goods from the plaintiffs. He had never bought or sold goods. He had seen goods sold, and knew that the plaintiffs’ firm had marked its goods according to the market price. He was not a stock man. Over objection and exception to his qualifications as an expert as to value, the trial justice allowed his testimony. This was error (Dolan v. Herring-Hall-Marvin Safe Co., 105 App. Div. 370, 371, 94 N. Y. Supp. 341); and the complaint should have been dismissed'.

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

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Bluebook (online)

127 N.Y.S. 460, Counsel Stack Legal Research, https://law.counselstack.com/opinion/willis-v-smith-nyappterm-1911.

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