Adolph Prince Co. v. Pyla — 145 N.Y.S. 881

Majority

p. 881

ADOLPH PRINCE CO. v. PYLA.

(Supreme Court, Appellate Term, First Department.

February 13, 1914.)

Headnote

Sales (§ 52*)—Actions fob Pbice—Evidence. In an action for the price of liquors sold to defendant, evidence held insufficient to show a sale.

[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 118-144, 1045; Dec. Dig. § 52.*]

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

p. 882

Action by the Adolph Prince Company against Michael Pyla. Judgment for plaintiff, and defendant appeals. Reversed, and new trial granted.

Argued January term, 1914, before LEHMAN, BIJUR, and PAGE, JJ. '

Samuel J. Siegel, of New York City (Chester E. Frankel, of New York City, of counsel), for appellant.

Harry Gordon, of New York City (Irving Gordon, of New York City, of counsel), for respondent.

Plaintiff sued for the price of certain liquors claimed to have been sold and delivered by it to defendant. The only evidence of the sale and delivery of the goods by the plaintiff was a receipt on one of plaintiff’s shipping slips signed by defendant, and the testimony of plaintiff’s driver, who said: “I went in and told him I got some goods for him from the Prince Company—what he ordered.” This is - no proof of a sale by plaintiff, and the complaint should have been dismissed on defendant’s motion. Defendant not only denied this testimony of the driver, but showed that he had actually paid another party for these goods, and detailed the circumstances of the purchase. There was proof that this third party was the agent of the plaintiff, and, of course, none at all that, if he had been such agent, defendant knew it.

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

PAGE, J., concurs. LEHMAN, J., concurs in the result.