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Goldberg v. Lackshin

139 N.Y.S. 943 Court Argued January term, 1913, before SEABURY, LEHMAN, and PAGE, JJ. Decision date 1913-02-07 English

Delivered by LEHMAN, J.

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p. 943
GOLDBERG v. LACKSHIN.
(Supreme Court, Appellate Term, First Department.
February 7, 1913.)

Headnote

Limitation of Actions (§ 195[1] )—Burden of Proof—Absence from State.
Where plaintiff in an action for goods sold made a prima facie showing of defendant’s absence from the state after the sale and delivery, the burden was on defendant to show his presence in the state after the indebtedness accrued for a sufficient time to bar the action by limitations.
[Ed. Note.—For other cases, see Limitation of Actions, Cent. Dig. §§ 711-716; Dec. Dig. § 195.*]
Appeal from Municipal Court, Borough of Manhattan, Second District.
Action by Morris Goldberg against Hyman Lackshin. From a judgment for defendant, plaintiff appeals.
Reversed, and new trial ordered.
Argued January term, 1913, before SEABURY, LEHMAN, and PAGE, JJ.
Max Lessler, of New York City, for appellant.
Albert Gross, of New York City, for respondent.

The plaintiff sued for goods sold and delivered to the defendant between October 6, 1905, and November 26, 1905. The answer of the defendant consists of a general denial and a plea of the statute of limitations. At the trial the plaintiff gave some testimony, very general in form, as to the sale and delivery of the goods in question, and also presented testimony which showed prima facie that the defendant had removed to Russia and resided there for some time after the goods were sold. At the close of the plaintiff’s casé the defendant moved to dismiss the complaint—■

“on the ground that he tailed to show a delivery of the goods, except the items of October 21st, October 19th, and October 23d, and upon the further ground that he has not proved facts sufficient to take it without the statute of limitations.”

The trial justice then stated that he reserved decision on this motion. The defendant then rested, without introducing any evidence, and the trial justice gave judgment in defendant’s favor. The defendant now seeks to sustain this judgment on the ground that the evidence is insufficient to show a delivery. The testimony on this point is very vague, but the defendant conceded that there was sufficient proof of delivery as to three items, and the plaintiff was entitled to judgment for the amount of these items at least, if the stat-' ute of limitations did not bar the action. The plaintiff—

“made a prima facie case of absence of the defendant from the state, and .put the burden of proof upon him to show his presence in the state after the indebtedness to the plaintiff accrued for a sufficient time to bar the claim; that is, for six years.” Helmer v. Minot, 75 Hun, 309 , 27 N. Y. Supp. 79 .

Judgment should therefore be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.