Wulfart v. Weinstein

Appellate Terms of the Supreme Court of New York

Wulfart v. Weinstein

91 N.Y.S. 359

CourtAppellate Terms of the Supreme Court of New York

DecidedDecember 23, 1904

StatusPublished

This text of 91 N.Y.S. 359 (Wulfart v. Weinstein) 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

Wulfart v. Weinstein, 91 N.Y.S. 359 (N.Y. Ct. App. 1904).

Pincite

Opinion

GILDERSLEEVE, J.

The plaintiff claims that her assignor sold $30,196.98 worth of goods for defendants, upon which it was agreed that he was to receive a 5 per cent, commission, which he clainw would amount to $1,509.35; that he has been paid on account of said sum $741.39, leaving a balance of $767.96. The said assignor, however, admitted on the trial that defendants’ counterclaim to the 'extent of $611.18 was correct, and should be offset against said sum of $767.96. Under these circumstances, all that plaintiff could recover was the sum of $156,78. The jury, however, gave a verdict for $335.25.

It appears, therefore, that the jury must have been under a wrong- impression as to the evidence, or to have disregarded it. The verdict is not justified by the evidence.

A large number of exceptions to the rulings on questions of evidence are presented, but we do not think it necessary to discuss them, as the verdict cannot stand for the reason above stated.

The judgment is reversed and a new trial granted, with costs to che appellant to abide the event.

FREEDMAN, P. J., concurs. MacLEAN, J., concurs in result.

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GILDERSLEEVE, J.

The plaintiff claims that her assignor sold $30,196.98 worth of goods for defendants, upon which it was agreed that he was to receive a 5 per cent, commission, which he clainw would amount to $1,509.35; that he has been paid on account of said sum $741.39, leaving a balance of $767.96. The said assignor, however, admitted on the trial that defendants’ counterclaim to the 'extent of $611.18 was correct, and should be offset against said sum of $767.96. Under these circumstances, all that plaintiff could recover was the sum of $156,78. The jury, however, gave a verdict for $335.25.

It appears, therefore, that the jury must have been under a wrong- impression as to the evidence, or to have disregarded it. The verdict is not justified by the evidence.

A large number of exceptions to the rulings on questions of evidence are presented, but we do not think it necessary to discuss them, as the verdict cannot stand for the reason above stated.

The judgment is reversed and a new trial granted, with costs to che appellant to abide the event.

FREEDMAN, P. J., concurs. MacLEAN, J., concurs in result.

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Bluebook (online)

91 N.Y.S. 359, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wulfart-v-weinstein-nyappterm-1904.