Burrows v. New York Breweries Co. — 119 N.Y.S. 196

Majority

p. 196

BURROWS v. NEW YORK BREWERIES CO., Limited.

(Supreme Court, Appellate Term.

November 12, 1909.)

Headnote

Guaranty (§ 91*)—Evidence.

Evidence, in a suit on a guaranty of a lease, held, insufficient to support a judgment for plaintiff.

[Ed. Note.—For other eases, see Guaranty, Cent. Dig. § 104; Dec. Dig. § 91.*]

Appeal from Municipal Court, Borough of Manhattan, Third District.

Action by Annie E. Burrows against the New York Breweries Company, Limited. From a judgment for plaintiff, defendant appeals.

Reversed.

Argued before GILDERSLEEVE, P. J., and SEABURY and LEHMAN, JJ.

*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes

p. 197

Guggenheimer, Untermyer & Marshall (Leon N. Futter, of counsel), for appellant.

Alfred J. Talley, for respondent.

No evidence was introduced by the defendant. Plaintiff showed that she, as owner, leased certain premises to one Clara Ihle; that, in consideration of such letting to said Ihle, a guaranty of the performance of all conditions of the lease by said Clara Ihle was made in writing and signed by “Flanagan, Nay & Co., by P. G. Tighe, Manager”; and that among those conditions of the lease was the payment of the water tax, and she produced a nonreceipted bill for the water tax. The court gave judgment for plaintiff. Defendant appeals.

No evidence connecting Flanagan, Nay & Co. with defendant was introduced, nor is there any evidence of the nonpayment of the water tax, beyond the nonreceipted bill and plaintiff’s assertion that, so far as she knows, it has not been paid, without any proof of the improbability, or even unlikelihood, of its being paid, without her knowledge, since the time of the receipt by her of the said bill. The evidence is insufficient to support the judgment, which must be reversed.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event.