Meister v. Sharkey's Monument Works — 5 A.D. 470

Majority

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Elizabeth Meister, as Administratrix, etc., of Conrad Meister, Deceased, Appellant, v. Sharkey’s Monument Works, Respondent.

Headnote

Payment — time books in plaintiff’s handwriting showing payments, contradicted by an account presented to the debtor, present a question for the jury.

Upon the trial of an action brought by the administratrix of Conrad Meister to recover for services alleged to have been rendered by her intestate to James Shavlcey, to whose business the defendant had succeeded, the court, deeming the evidence of payment, which consisted for the most part of entries made in time books by Conrad Meister himself, conclusive, directed a dismissal of the complaint.

Upon the trial of the action a daughter of Conrad Meister produced a paper entitled “ Statement of Account. O. Meister,” and testified that she saw her lather give a copy of this paper, which showed a balance of $3,481.47 as due him, to James Sliarkcy. She further testified that James Sharkey, in speaking-of this paper, said to her father in her presence subsequently that he had not had time to look it over; that it was of twenty-four years’ standing and that ho wanted time to look it over, and also that she subsequently heard him say to her father, “If I was financially situated I would soon settle this matter up. I am not so at present."

Held, that as the language quoted, if used by Sharkey, was difficult to reconcile with the defense that Meister had been fully paid, and, as if the jury had been allowed to pass upon the entries in Master’s time hooks in the light of his daughter’s testimony they might have reached the conclusion that the plea of payment had not been satisfactonly made out, that it was erroneous to dismiss che complaint.

Appeal by the plaintiff, Elizabeth Meister, as administratrix, etc., of Conrad Meister, deceased, from a judgment, of the City Court of Brooklyn in favor of tbe defendant, entered in the office of the

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clerk of said court on the 17th 'day of June, 1895, upon the dismissal of the complaint directed by the court after a trial before the court and a jury.

Simon Sultan, for the appellant.

William M. Benedict, for the respondent.

The plaintiff’s husband, Conrad Meister, was employed for many years as a designer, salesman and superintendent in certain marble and granite works, carried on at first by one James Sharkey, and afterward by the defendant corporation as his successor in business. The administratrix brought this suit to recover a balance alleged to have been due for her husband’s services at the time of his death. At the conclusion of the evidence on both sides the trial court dismissed the complaint on the ground that the proof showed that the plaintiff’s intestate had been paid in full. The propriety of holding the defendant corporation liable as the successor of James Sharkey was not disputed by counsel for the respondent upon the argument of the present appeal, and the only question discussed was, whether the case ought to liave been sent to the jury or not, on the issue of payment.

The evidence to sustain this plea was found for the most part in time books in the shape of entries made by Conrad Meister himself, and it is apparent that the court below deemed these entries conclusive. There was testimony, however, in the case which deprived them of that character and raised an issue of fact. A daughter of Conrad Meister produced a paper entitled, “ Statement of Account, C. Meister,” of which she said her father gave Mr. Sharkey a copy on Washington’s birthday, 1891. This paper showed a balance due Meister on the seventeenth of February in thattyear of $3,481.47. The same witness testified that Mr. Sharkey, speaking of this paper, said to her father in her presence, on a subsequent occasion, that he had not had time to look over it yet; that it was of twenty-four years’ standing, and he wanted time to look over it, and that, at a still later interview, she heard him say to her father, “ If I was financially situated I would soon settle this matter up. I am not so at present.” This language on the part of Sharkey, if he used it, is diffi

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cult to reconcile with the defense now set up, that Meister had been fully paid, and if the jury had been allowed to pass upon the entries of Meister’s in the time books in the light of the daughter’s testimony as to what Sharkey subsequently said about her father’s claim, they might have reached the conclusion that the plea of payment had not been satisfactorily made out. At all events, there was enough in this evidence to require the submission of the case to the jury.

The judgment should be reversedj and a new trial granted, with costs to abide the event.

All concurred.

Judgment reversed and new trial granted, costs to abide the event.