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Hoellerer v. Kaplan

43 N.Y.S. 1035 Court N.Y. App. Term Decision date 1897-02-26 English

Delivered by DALY, P. J.

Contents

Majority

p. 1035
HOELLERER v. KAPLAN.
(Supreme Court, Appellate Term, First Department.
February 26, 1897.)

Headnote

Evidence—Admissions of Party—Sufficiency.
A finding that defendant was the owner of a coach» which collided with plaintiff's wagon is sustained by evidence that defendant said, when called on to pay the damage, that he would give the bill to his driver to pay, though defendant denies having made the statement.
Appeal from Fourth district court.
Action by Philip Hoellerer against Charles Kaplan. From a judgment entered on a decision of the trial justice in favor of plaintiff, defendant appeals. Modified. i
Argued before DALY, P. J., and McADAM and BISCHOFF, JJ.
Max D. Steuer, for appellant.
Leopold W. Harburger, for respondent.

The evidence in this case is extremely meager, and the liability of the defendant for the damage sued for is found solely because of his admissions. 'While an admission is the weakest kind of evidence, it is nevertheless sufficient to charge the party making it. The claim in this case is made by a livery stable keeper for damages to a hearse, the glass door of which was broken by the pole of a coach alleged to belong to defendant, and to be in charge of one of his drivers. The driver gave defendant’s address as that of his employer, and when the latter was called upon by the plaintiff’s manager with a bill for the damage he said he would give it to his driver to pay. This was denied by the defendant, but the justice, who had the witnesses before him, decided the conflict in favor of plaintiff. The admission was sufficient to sustain an inference that the driver who did the damage was in defendant’s employ, and that the accident had been reported to him. The judgment in favor of the plaintiff therefore cannot be disturbed. It appears, however, that while the damages proved were only $3.50, a judgment for $8 was rendered. It must be modified and reduced to the former amount, and, as so modified, will be affirmed, without costs to either party. All concur.