American Label Co. v. Kander — 93 N.Y.S. 1108

Majority

p. 1108

AMERICAN LABEL CO. v. KANDER.

(Supreme Court, Appellate Term.

May 23, 1905.)

Headnote

Sales—Delivery—Co ntbact—Performance—Evidence.

Where plaintiff contracted to deliver half of a quantity of labels purchased when they were finished, and the remainder within six months thereafter, and the first delivery was made on May 14th, but plaintiff failed to show that it was ready to deliver the balance within six months thereafter, it was not entitled to recover the price of such balance.

Appeal from Municipal Court, Borough of Manhattan, Third District.

Action by the American Label Company against William Kander. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Argued before SCOTT, P. J., and TRUAX and DOWLING, JJ.

Engel, Engel & Oppenheimer, for appellant.

Silverman & Bennett, for respondent.

The contract, as testified to by plaintiff’s salesman, was that one-half of the labels were to be delivered when finished, and the remainder six months afterwards. He also testified that the first delivery, which has been paid for, was made about May 14th, which would make the second delivery due about November 14th; and it was incumbent upon the plaintiff to show that it delivered or was ready to deliver the balance of the order at that time. It failed to do this, and thereby failed to sustain the burden of proof necessary to justify the judgment.

The judgment and order must be reversed, and a new trial granted, with costs to appellant to abide the event. All concur.