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Tannebaum v. Nikop

114 N.Y.S. 32 Court N.Y. App. Term Decision date 1909-01-08 English

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p. 32
TANNEBAUM et al. v. NIKOP et al.
(Supreme Court, Appellate Term.
January 8, 1909.)

Headnote

Sales (§ 359[1] )—Sufficiency of Evidence.
In an action for goods sold and delivered, evidence held sufficient to make a prima facie case.
[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 1056-1059; Dec. Dig. $ 359.[1] ]
Appeal from Municipal Court, Borough of Manhattan,- Seventh District.
Action by Henry Tannebaum and another, composing the firm of Tannebaum & Bachmann, against Aaron Nikop and another, composing the firm of Nikop & Kellerman. Judgment for plaintiffs, and defendants appeal. Affirmed.
Argued before GILDERSLEEVE, P. J., and BISCHOFF and GUY, JJ.
Rogers & Rogers (Gustavus A. Rogers and Saul E. Rogers, of counsel), for appellants.
Eph. A. Karelsen (Matthew P. Doyle, of counsel), for respondents.

A prima facie case of sale and delivery was made out, and this judgment, which is assailed only upon the ground that a nonsuit should have been directed, must be affirmed. While the proof fell short of establishing an oral admission of delivery, in that the promise to pay the account was made to relate to no particular indebtedness, enough appears from the statements made in the books of the defendants’ firm, and from averments of record made with their consent and in their behalf for the purposes of the settlement of the partnership accounts, to disclose an actual admission that the firm was indebted to the < plaintiffs for the claim in suit. The orders of sale were proven by the testimony of the plaintiffs’ salesman, whose recollection was properly refreshed by memoranda, and the transaction was connected with the defendants’ admission of indebtedness, which admission supported a finding of the fact of delivery. Dugan v. Longstaff, 52 Misc. Rep. 288 ; 102 N. Y. Supp. 1120 .

Judgment affirmed, with costs.

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