Headnote
Appeal from Municipal Court, Borough of Manhattan, Second District. Action by the Haverhill Box Board Company against Coy, Hunt & Co. From a judgment for plaintiff, defendant appeals. Reversed. Robinson & Robinson, for appellant. J. S. Lehmaier, for respondent.The action was brought to recover the purchase price of certain paper board manufactured by the plaintiff and delivered to defendant on or about November 17, 1903. The defendant admitted the purchase and delivery of these goods, and nonpayment, but seeks to recover damages on four counterclaims, based upon the failure of the plaintiff to fill certain orders for paper sent to them by the defendant and accepted by the plaintiff. As a consequence of plaintiff’s failure to fill these orders, the defendant claims it had to go into the open market and at an increased price buy other paper to meet the demands of its customers, to whom it had previously sold the paper ordered from plaintiff in reliance upon the plaintiff’s promise to deliver within a reasonable time. The plaintiff admitted the receipt and acceptance of these matters, but claimed that the deliveries under them were conditioned upon its being able to obtain pulp to make the paper. The defendant denied this, and by many material questions put to witnesses sought to prove the execution of these orders for the purpose of introducing them in evidence. Upon objection to these questions by the plaintiff, the defendant was not permitted by the court to do this. In sustaining these objections, the court erred many times, to the serious harm of the defendant. Under the circumstances, the judgment should be reversed, with costs to the appellant. Judgment reversed, and a new trial ordered, with costs to the appellant to abide the event.
SCOTT, J., concurs.
I concur in the result. Almost if not every one of the questions disallowed by the learned justice implied conclusions or assumptions of facts not proven.