Rosenberg v. Wilkens — 111 N.Y.S. 539

Majority

p. 539

ROSENBERG v. WILKENS.

(Supreme Court, Appellate Division, Second Department.

June 29, 1908.)

Headnote

Appeal and Error—Sufficiency of Evidence—Hearsay and Conclusions.

In determining the sufficiency of the evidence to support a finding, hearsay and conclusions in the testimony must be disregarded.

Hooker, J., dissenting.

Appeal from Municipal Court of New York.

Action by Henry E. Rosenberg against William Wilkens. From a judgment for plaintiff, defendant appeals.

Reversed, and new trial granted.

Argued before WOODWARD, JENICS, HOOKER, RICH, and GAYNOR, JJ.

Leonard J. Reynolds, for appellant. -

Max E. Lehman, for respondent.

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.

Judgment of the Municipal Court reversed, and new trial ordered; costs to abide the event. All concur, except HOOKER, J., who dissents.