Fox v. Proctor — 217 N.Y. 711

Majority

p. 711

Hugh L. Fox et al., Appellants, v. Frederick F. Proctor, Respondent.

Headnote

Appeal—unanimous affirmance of judgment of Municipal Court — Court of Appeals precluded from inquiring as to sufficiency of proof.

Where a judgment of the Municipal Court of the city of Hew York has been unanimously affirmed by the Appellate. Term and by the Appellate Division, the unanimous affirmance rule prohibits the Court of Appeals from inquiring into the sufficiency of the proof to establish the facts upon which the judgment is based.

Fox v. Proctor, 160 App. Div. 712 , affirmed.

(Argued March 21, 1916;

decided April 11, 1916.)

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 6, 1914, -affirming a determination of the Appellate Term which affirmed a judgment in favor of defendant entered upon a decision of the Municipal Court of the city of New York in an action to

p. 712

recover for goods sold and delivered. The facts upon which plaintiffs claim their right to recover are as follows: 1. That the merchandise was delivered by the plaintiffs to defendant on thirty days’ trial. 2. That no notice of rejection, dissatisfaction or disapproval was given within the thirty days. Upon these facts plaintiffs claim that by reason of the provision of section 100 of the Personal Property Law the property in the goods passed to the defendant at the expiration of the thirty days, and that thereupon the defendant became liable for the price-.

William C. Rosenberg for appellants.

Millard F. Tompkins and William F. S. Hart for respondent.

This appeal comes to this court by permission of the Appellate Division, which has affirmed a determination of the Appellate Term, which had affirmed a judgment of the Municipal Court of the city of New York in favor of the defendant in an action for goods sold and delivered. The pleadings were oral. The plaintiffs claimed for goods sold and delivered. The defendant interposed a general denial. The Municipal Court, after hearing evidence for both parties, rendered judgment for the defendant. The affirmance of this judgment being unanimous it imports that there was sufficient evidence to sustain the decision of the trial court that there was no sale. The unanimous affirmance - rule prohibits us from.inquiring into the sufficiency of the proof to establish the alleged sale, which is the only question argued by counsel or discussed by the court below. For this reason, and without passing upon that question, the judgment must be affirmed, with costs.

Willard Bartlett, Oh. J., Chase, Collin, Cuddebaok, Cardozo and Pound, JJ., concur; Seabury, J., not sitting.

Judgment affirmed.