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Brower v. New York Mailing & Advertising Co.

95 N.Y.S. 1116 Court N.Y. App. Term Decision date 1905-11-28 English

Contents

Majority

p. 1116
BROWER et al., Respondents, v. NEW YORK MAILING & ADVERTISING CO., Appellant.
(Supreme Court, Appellate Term.
November 28, 1905.)

Headnote

Appeal from Municipal 'Court, Borough of Manhattan, Twelfth District. Action by Ogden Brower and another against the New York Mailing & Advertising Company. From a judgment for" plaintiffs, defendant appeals.
Reversed.
Cantwell & Moore, for ap■pellant.
Charles De Hart Brower, for respondents.

Referring to the determination of this court on a former appeal herein ( 92 N. Y. Supp. 61 ), it was said that “the plaintiffs offered no explanation of these letters, and they clearly contradict the plaintiffs’ testimony.” For aught that appears the same is true on this appeal, for charges in the books of Hindle & Co., and payment by the plaintiffs of the disputed indebtedness, as well as evidence of time by artisans, may hardly be construed as at all explanatory of the positive statements of the plaintiffs, particularly so late as in their letter ■of April 13, 1904, denying their liability, and so their agreement with the defendant, notwith•standing they pleaded and testify orally to the contrary. Judgment reversed, and a new trial ordered, with costs to appellant to abide the event.

GILDBRSLEEVE, J., taking no part.