Hutkoff v. Elting

This is an appeal from a judgment entered upon the verdict of a jury in favor of plaintiff, and from an order denying defendant’s motion to set aside the verdict, and for a new trial. The complaint alleges a cause of action for $270 for goods sold and delivered by the plaintiff to the defendant. The answer denies each and every allegation of the complaint. On the trial the plaintiff proved that the goods were sold to the defendant, that credit was given to him, and that he directed the goods to be delivered to the firm of L. Biting & Son, Kingston, N. Y. The defendant, however, proved that the goods were sold and delivered to the firm of L. Biting & Son, in Kingston, N. Y.: that the defendant was not a partner of said firm; that he went along with his brother to the place of business when his brother bought said goods for said firm. The contention thus raised on the trial by the respective parties to this action was squarely and properly submitted to the jury; the trial judge instructing the jury: “The question is, to whom was the credit given, and who agreed to accept the liability-'’’ The jury found in favor of the plaintiff. It is convincing that (hey gave credit to the testimony adduced by (he plaintiff, and that testimony is insufficient to sustain the verdict. We cannot interfere therewith on this appeal. Judgment affirmed, with costs. VAN WYCK, J., concurs.