Desmond v. Byrne — 129 N.Y.S. 1120

Majority

p. 1120

DESMOND v. BYRNE.

(Supreme Court, Appellate Term.

May 4, 1911.)

Headnote

Appeal from Municipal Court, Borough of Manhattan, Fifth District. Action by William D. Desmond against Patrick J. Byrne. From a judgment for defendant, plaintiff appeals.

Reversed, and new trial ordered.

Goodspeed & Maroney (Edward J. Maroney, of counsel), for appellant. William E. Murphy (Joseph E. Cavanaugh, of counsel), for respondent.

Notwithstanding that the defendant admitted that he signed a written contract with the plaintiff’s assignor, under which the plaintiff’s assignor was required to deliver to the defendant 15 books, for which the defendant agreed to pay $59.50, and that the books were delivered, the court below granted judgment for the defendant, dismissing the complaint. The defendant’s claim that he delivered the books to an express company to return them to the plaintiff’s assignor and the production of an alleged receipt from the express company seem to constitute the grounds upon which this judgment was rendered. The court also admitted other incompetent evidence tending to contradict the contract existing 'between the defendant and the plaintiff’s assignor. Judgment reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.