Rosenberg v. Wilkens — 127 A.D. 906

Majority

p. 906

Henry E. Rosenberg, Respondent, v. William Wilkens, Appellant.

Headnote

Contract — action for commissions for selling carriage —failure of proof.

Appeal from a judgment for the plaintiff, rendered in the Municipal Court of the city of Hew York.

The plaintiff testifies that the defendant employed him to sell his carriage, agreeing to pay him for his services all that the carriage should be sold for above §450. The recovery is for §50 on the theory that the carriage was sold for §500, but there is no proof of the price it was sold for. The testimony for the plaintiff is filled with hearsay and conclusions, but they have to be disregarded. Only probative evidence counts. Again, it is doubtful if there is any proof that the carriage sold was that of the defendant. It apparently was not at the place where it is proved that the defendant’s was. The judgment should be reversed. Woodward, Jenks and Rich, JJ., concurred; Hooker, J., dissented. Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.