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Silberstein v. Ocean Steamship Co.

110 N.Y.S. 1145 Court N.Y. App. Term Decision date 1908-05-15 English

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p. 1145
SILBERSTEIN v. OCEAN S. S. CO. of SAVANNAH.
(Supreme Court, Appellate Term.
May 15, 1908.)

Headnote

Appeal from Municipal Court, Borough of Manhattan, Ninth District. Action by Albert I. Silberstein against the Ocean Steamship Company of Savannah. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Reversed, and new trial granted.
Davies, Stone & Auerbach, for appellant.
Abraham B. Keve, for respondent.

We would be constrained to reverse the judgment and order on appeal, if for no other reason than the refusal of the court below to admit evidence of the bill of lading, which was, of course, the real contract between the parties, and which necessarily would have thrown light upon the construction to be given to the stipulation upon which the court based its direction of a verdict and denial of the motion for a new trial. It was plainly the fault of plaintiff, or his counsel, that the defendant did not get in evidence the bill of lading or its contents, and it seems clear that, under all the circumstances, the ends of justice will be best served by granting a new trial. Judgment and order reversed, and a new trial granted, with costs to appellant to abide the event.