Majority
p. 121Hartley v. Cataract Steam Engine Co. No. 2. (Supreme Court, General Term, Second Department. May 9, 1892.) Argued before Barnard, P. J., and Dykman and Pratt, JJ.
Headnote
1. Action by Assignee—Proof of Assignment.The assignment of a claim in suit is proved by producing the assignment and proving its execution.
2. Witness—Refreshing Memory.
In an action by the assignee of a claim for goods sold and delivered, the assignor, called as a witness, may look at his books to refresh his memory as to the goods delivered.
3. Delivery to Agent—Former Payment by Principal.
Proof that goods were sold and delivered to a person in charge of the house of a fire engine company, and that the witness had sold similar goods to such person before, and the engine company had paid for them, is sufficient to establish the latter’s liability.
Appeal from Bichmond county court.
Action by Mark Hartley, as assignee of Charles M. Pine and Charles T. Pine, against Cataract Steam Engine Company Ho. 2, for goods, wares, and merchandise. Judgment for plaintiff. Defendant appeals.
Affirmed.
W. J. Powers, for appellant. De Groot, Rawson <& Stafford, for respondent.
The assignment of the claim in suit to the plaintiff was denied, and the plaintiff proved the fact by producing the assignment and proving its execution. The witness Pine was one of the assignors, and a member of the firm that sold the goods in suit. It was proper for him to look at the firm books to refresh his memory as to the goods delivered to the defendant. Bigelow v. Hall, 91 N. Y. 145 ; Raux v. Brand, 90 N. Y. 309 . The witness Pine testified that the goods were sold and delivered to one Gorman, who had charge of defendant’s engine house, and that he had sold similar goods to him before, and the defendant had paid for them. It is plain that the defense was purely technical, and without merit. Judgment affirmed, with costs.
Cases cited
- Bigelow v. Hall 91 N. Y. 145 p. 121
- Raux v. Brand 90 N. Y. 309 p. 121