Lewis v. South Shore Co-operative Ass'n — 211 A.D. 831

Majority

p. 831

Franz C. Lewis and Another, Respondents, v. South Shore Co-operative Association, Inc., Appellant.

Headnote

Appeal from a judgment of the Supreme Court in favor of the plaintiffs, entered in the Chautauqua county clerk’s office February 13, 1924, upon the verdict of a jury, and also from an order entered February 21, 1924, denying defendant’s motion for a new trial made upon the minutes.

The existence of the partnership, the sale and delivery of the baskets and the fact of non-payment were fairly for the jury on the evidence. We find no error. There is no sufficient evidence to show that defendant here succeeded to the claim of the Growers and Shippers Association against Franz C. Lewis. But if that were otherwise, under the defense of payment and in the absence of a counterclaim, it was at least necessary to prove an agreement that the claim in suit here was to be applied on defendant’s claim against Franz C. Lewis and in that manner paid. The right of setoff against an undisclosed principal under the general rule is not applicable under the pleading here. Whether there was an agreement or not was for the jury. Since the issue was whether the claim in suit had been paid by agreement in the manner claimed, it was immaterial whether defendant’s alleged claim against Lewis was valid or not. Hence the

p. 832

admission of the telephone conversation, even if erroneous, was harmless. The judgment and order should be affirmed, with costs.

All concur. Present — Hubbs, P. J., Clark, Sears, Crouch and Taylor, JJ.

Judgment and order affirmed, with costs.