Zucchi Mfg. Co. v. Herbert

Appellate Terms of the Supreme Court of New York

Zucchi Mfg. Co. v. Herbert

127 N.Y.S. 961

CourtAppellate Terms of the Supreme Court of New York

DecidedMarch 13, 1911

StatusPublished

This text of 127 N.Y.S. 961 (Zucchi Mfg. Co. v. Herbert) 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

Zucchi Mfg. Co. v. Herbert, 127 N.Y.S. 961 (N.Y. Ct. App. 1911).

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Opinion

BIJUR, J.

Defendant was a decorator and dealer in furniture.

Plaintiff’s three witnesses, all officers of the company, testified that an account was stated by the acquiescence of the defendant at a conversation at which all four were present, and at which the account was presented. Defendant denies the acquiescence, claiming that the difference between the parties arose in respect to a cabinet which he had ordered for a customer to be delivered in 8 weeks to cost $160, and which was not ready until the expiration of 19 weeks, whereupon the customer declined to accept it. Plaintiff retained the cabinet, and on the day of the trial still had it. The testimony of plaintiff’s witnesses is unsatisfactory, and they contradict one another. Two of them at least admit that defendant disputed the account, particularly as to the item mentioned, but they claim that he finally agreed to pay it. Their testimony even in that regard, however, has too mucn the appearance of studied agreement to be entitled to much weight.

It seems that there were at least two accounts and possibly three in writing before the parties at the interview in question. Each seemed to differ from the other, and the defendant claims that all were incorrect. That there were at least two different ones is conceded by plaintiff. Under such circumstances, it would hardly seen! that plaintiff had sustained the burden of proof.

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

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BIJUR, J.

Defendant was a decorator and dealer in furniture.

Plaintiff’s three witnesses, all officers of the company, testified that an account was stated by the acquiescence of the defendant at a conversation at which all four were present, and at which the account was presented. Defendant denies the acquiescence, claiming that the difference between the parties arose in respect to a cabinet which he had ordered for a customer to be delivered in 8 weeks to cost $160, and which was not ready until the expiration of 19 weeks, whereupon the customer declined to accept it. Plaintiff retained the cabinet, and on the day of the trial still had it. The testimony of plaintiff’s witnesses is unsatisfactory, and they contradict one another. Two of them at least admit that defendant disputed the account, particularly as to the item mentioned, but they claim that he finally agreed to pay it. Their testimony even in that regard, however, has too mucn the appearance of studied agreement to be entitled to much weight.

It seems that there were at least two accounts and possibly three in writing before the parties at the interview in question. Each seemed to differ from the other, and the defendant claims that all were incorrect. That there were at least two different ones is conceded by plaintiff. Under such circumstances, it would hardly seen! that plaintiff had sustained the burden of proof.

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

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Bluebook (online)

127 N.Y.S. 961, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zucchi-mfg-co-v-herbert-nyappterm-1911.