Coughlan v. Elfin — 140 N.Y.S. 978

Majority

p. 978

COUGHLAN v. ELFIN et al.

(Supreme Court, Appellate Term, First Department.

April 10, 1913.)

Headnote

New Trial (§ 71^[1] )—Question as to Identity oe Pasties.

Where an action was brought against B., and a person, identified as B. by plaintiff and his witnesses took the stand and testified that he was not B., but was S., and that he was only an agent for B., and judgment was rendered for plaintiff against him, a new trial will be ordered, in order that there can be a thorough inquiry as to the identity of B. and S.

[Ed. Note.—For other cases, see New Trial, Cent. Dig. §§ 144, 145; Dec. Dig. § 71.*]

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

Action by Patrick Coughlan against Barney Elfin and others, doing business as Elfin, Enoch & Co. Judgment for plaintiff, and defendants appeal. Reversed.

Argued March term, 1913, before LEHMAN, GERARD, and DEEANY, JJ.

Abram Goodman, of New York City (Samuel Berzick, of New York City, of counsel), for appellants.

Harry E. Horwitz, of New York City (Jacob Neumark, of New York City, of counsel), for respondent.

Plaintiff brought this action to recover the sum of $150, alleged to. have been agreed to be paid to the plaintiff by a per

p. 979

son known to him as “Barney” Elfin, and who on the trial testified that he was Selig Elfin, in consideration of the plaintiff obtaining for the defendants a contract for the installation of certain bar fixtures.

It appears that the defendants are in the business of selling bar fixtures, and plaintiff testified that -in April, 1912, he had a conversation with Barney Elfin, and that Barney Elfin agreed that, if plaintiff got the job of fixing up the saloon of one Murphy, he would give plaintiff $150, and that thereafter plaintiff did procure the order for defendants from Murphy, and that Elfin paid him $45 on account of the $150 promised.

A man identified by plaintiff and his witnesses as Barney Elfin took the stand and testified that he was Selig Elfin, and that he was a salesman and estimator for Elfin, Enoch & Co., a partnership consisting of Louis Enoch and Barney Elfin; that he had never been a member of this partnership, and that the Barney Elfin who was a member was a truck driver; and that he was only the estimator and salesman for the firm. Max Haimowitz was not served in the action.

The plaintiff respondent claims that, as this Barney Elfin who drove the truck was not called, the judgment of the court below can be sustained on the theory that the court found that the Elfin who was in court, and who was identified by plaintiff and his witnesses as Barney Elfin, 'was really Barney Elfin, and the one who was a member of the firm of Elfin, Enoch & Co., and that he was not Selig Elfin, and that the Barney Elfin referred to by the man who called himself Selig Elfin either did not exist or was not a member of the firm of Elfin, Enoch & Co.

I think that in view of this confusion, the interests of justice will be best served by ordering a new trial, where there can be a thorough inquiry as to the identity of Barney and Selig Elfin.

Judgment reversed, and a new trial ordered, with costs to appellants to abide the event. All concur.