Sullivan v. Wolff — 98 N.Y.S. 824

Majority

p. 824

SULLIVAN v. WOLFF et al.

(Supreme Court, Appellate Term.

April 24, 1906.)

Headnote

Appeal — Review—Evidence.

Where there was a sharp conflict of testimony as to whether defendants had agreed to give plaintiff possession of certain horses, or whether possession was to wait his payment of the balance of the purchase price, and notwithstanding that the justice indorsed a memorandum on the summons to the effect that he did not believe plaintiff’s story, he made a finding for plaintiff, on which judgment was rendered, it will be reversed on appeal.

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

Action by Michael Sullivan against Jules Wolff and others. From a Municipal Court judgment for plaintiff, defendants appeal.

Reversed.

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

J. Levy, for appellant.

P. C. Taiman, for respondent.

The issue was simply whether the defendants, when receiving $100 from the plaintiff, had agreed to give him possession of the horses purchased, or whether that possession was to await his payment of the balance of the purchase price. There was a close and sharp conflict of testimony upon the question of the terms of the contract, and, if the plaintiff’s version was accepted, judgment was properly rendered in his favor. The justice, however, while finding for the plaintiff, indorsed a memorandum upon the summons to the effect that he did not believe the plaintiff’s story. We cannot reconcile, this statement with the judgment, and substantial justice requires that a new trial be had.

Judgment reversed, and a new trial ordered, with costs to the appellant to abide the event.