Woetjen v. Gellert

22 Misc. 331, 49 N.Y.S. 162

• Court: Appellate Terms of the Supreme Court of New York
• Decided: January 15, 1898
• Status: Published

Opinion

Daly, P. J.

The plaintiff, a milk dealer, claimed $116.11 balance for milk furnished, as alleged, to defendant, a retail dealer, between March 3 and May 7, 1893, and recovered judgment for the full amount, with-interest. The answer was a general denial. It is claimed that plaintiff failed to prove his case.

The milk was delivered at the corner of Avenue 0 and Houston street, and deliveries commenced, according to plaintiff’s evidence, ■some time before tire first date mentioned upon orders given, as-alleged, by defendant about half a year before. This was the plaintiff’s testimony, and his driver .testified that he knew the defendant and delivered the milk to him at the place mentioned. On defendant’s behalf, a witness, Max Lowenthal, testifies that from 1889 to August, 1893, he kept a grocery at 356 Houston street, which, it appears from the 'plaintiff’s own exhibit, is the corner of Avénue O, and that he took milk from one Eschweig, and that the defendant had nothing to do with the business. ' The agent of the owner of the premises occupied by Lowenthal was called, and testified that the latter was the tenant of the place during the period in question,-and that the defendant had nothing to do with it. The defendant, in bis own behalf, testified that he was not in the place between.March 3 ánd May 7, 1893) and bought no milk between those dates from.the plaintiff; that, he did occupy the place from August, 1893,.after Lowenthal moved out, and took milk from the plaintiff and paid for it; that the bills-produced on the trial by plaintiff were, made out to “A. Gellert,” who was his son.

Plaintiff being recalled stated that- he delivered milk to A. Gellert, defendant’s son, at a- different place, namely, .in Rivington and Attorney streets; but he could not say if the bill for it was'in 1894, and in answer to .the question, “ Will you swear this was not sold in 1894?” he answered, “I don’t know.” If this question -referred to the charge in suit (and it may be inferred that it did), then the plaintiff confessed to doubts as to the- year in which he made the deliveries sued for,, and his whole right to recover depended -upon his establishing by satisfactory evidence that the defendant was responsible for deliveries during the period claimed for.

It is manifest from the testimony of disinterested witnesses that, during the period of the alleged deliveries of milk to the defendant at the corner of Houston street and Avenue 0, that place was kept by a stranger, and that no milk was delivered there to the defendant.

• The judgment will, therefore, have to be reversed and a new trial ordered. , '■ ¡ ¡ ' ' . ,

McAdam and Bischoff, JJ., concur.

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