Wise v. Rosenblatt — 9 N.Y.S. 500

Majority

p. 500

Wise et al. v. Rosenblatt.

(Common Pleas of New York City and County, General Term.

April 7, 1890.)

Headnote

Counter-Claim—Evidence—Judgment.

Plaintiffs received goods on commission from defendant, and made advances thereon, for which the latter gave receipts stating that the goods were to be sold without limit as to time and price. In an action to recover the difference between what the goods realized and the advances, defendant claimed that plaintiffs guarantied a stipulated price, and counter-claimed therefor. The court ignored the counter-claim, but found for defendant without costs. Held, error; for if defendant’s testimony was to be believed at all, he was entitled to both his counter-claim and costs.

Appeal from eleventh district court.

Action by Leopold Wise and another against William Rosenblatt. From a judgment for defendant, plaintiffs appeal.

Argued before Larremore, C. J., and Bischoff, J.

John J. Thomasson, for appellants. H. Steinert, for respondent.

The plaintiffs were auctioneers, and on the 20th and 21st days of March, 1889, received goods on commission from defendant, making advances thereon, in their usual course of business, of $655, for which the defendant gave receipts which are substantially the same, except as to'date and amount; “Received of L. & 0. Wise--dollars on account of all goods consigned to them, the same to besold at their discretion, without limit as to-time and price. [Signed] William Rosenblatt. ” Plaintiffs claim that they did their best to sell the said goods, but were unable to do so, and notified the defendant he should come and take his goods away, returning the advance made by them. The defendants claim that the plaintiff guarantied that the goods should bring a certain stipulated amount, and counter-claims and demands judgment against the plaintiff for $257. The justice appears not to have allowed the counter-claim, and found judgment for the defendant without costs. If the defendant’s testimony is to be believed, he was entitled to his counter-claim. The judgment, in its present form, is not authorized by the facts or practice, and should be reversed, with costs.