Dinsmore v. Butler — 98 N.Y.S. 835

Majority

p. 835

DINSMORE v. BUTLER.

(Supreme Court, Appellate Term.

April 24, 1906.)

Headnote

Sales — Action fob Pbioe — Evidence—Sufficiency.

In an action for the price of goods sold and delivered, evidence considered, and held insufficient to show delivery.

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

Action by Elizabeth R. Dinsmore against Wilson W. Butler. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Reversed, and new trial ordered.

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

J. Park Henderson, for appellant.

Charles Fisher, for respondent.

The plaintiff seeks to recover for goods “furnished the defendant’s wife as agent of the defendant, at the request of said defendant, necessaries for her use,” of the value of $110. The answer, among other things, is a general denial. We shall treat the action as one for goods sold and delivered.- In order to maintain such an action

p. 836

it is necessary to show that the goods were in fact delivered. This the plaintiff has failed to do. She attempted to prove delivery of the goods by one witness, Miss Mahoney, who testified as follows;

“Q. What do you mean by ‘delivery’? A. By sending them to the hotel where she lives. Q. Where did you give them to her? A. They were delivered at the office. Q. At the hotel? A. Yes, sir. Q. Do you remember ever having given them to her personally? A. Yes; because Mrs. Butler called afterwards to say that she would not receive any goods, so she must have had some inkling of it. Q. But. you don’t know yourself of her having received them? A. Yes; because the clerk told me that there were no goods left at the office. Q. But you don’t know of having delivered these goods to Mrs. Butler do you? A. No, sir; but Mrs. Butler knows that she received them.”

It is evident from' this evidence that this witness did not deliver the goods to the defendant, and that she of her own knowledge did not know, about the delivery of such goods. Another witness for the plaintiff (Miss Gilien) said that she packed the goods and sent them to Mrs. Butler; “sent a man with it to deliver it.”

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