Kirchner v. Otto — 30 N.Y.S. 1065

Majority

p. 1065

(10 Misc. Rep. 226.)

KIRCHNER v. OTTO.

(City Court of New York, General Term.

November 20, 1894.)

Headnote

Partnership—Evidence.

A receipt signed by defendant for goods sold and delivered by plaintiff is sufficient proof of a sale to defendant individually, though defendant claims that he had taken a partner, with whom he was jointly liable, and that he had informed plaintiff of that fact.

Appeal from trial term.

Action by Michael Kirchner against Peter Otto. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

Argued before YAH WYCK and McCARTHY, JJ.

Menken Bros., for appellant.’

Wagner & Acltner, for respondent.

The record shows that plaintiff produced, on the trial, receipts signed by Peter Otto, the defendant, for $218.50 worth of materials delivered by him to defendant, and plaintiff admitted a payment of $50; while defendant contended that the entire amount had been paid, and, moreover, claimed that he had informed plaintiff that he had taken a partner, and that, therefore, he was not individually liable for a part of the materials, but jointly with this partner, who was not made a party defendant. These receipts, signed “Peter Otto,” are proof that the materials were sold and delivered to him; and it was not error for the court to instruct the jury to find for the plaintiff for the balance of $168.50, unless they should determine that the defendant had paid the same, as he claimed by his evidence. The verdict for plaintiff for such balance and interest is not against the weight of evidence, and the judgment and order are affirmed, with costs.