Wise v. Rosenblatt — 30 N.Y. St. Rep. 858

Majority

p. 858

Leopold Wise et al., App’lts, v. William Rosenblatt, Resp’t.

(New York Common Pleas,

General Term,

Filed April 7, 1890.)

Headnote

Judgment—Auctioneers.

Plaintiffs as auctioneers made advances on goods, taking a receipt which stated that the goods were to he sold at their discretion without limit as to time or price. Mot being able to sell they brought action to recover the advance. Defendant claimed that plaintiffs guaranteed the goods would bring a certain price and counterclaimed for breach thereof. The court gave judgment for defendant without costs. Held, that the judgment in that form was not authorized by the facts or practice.

Appeal from the eleventh district court.

J. J. Thomasson, for app’lts; H. S. Steinert, for resp’t.

The plaintiffs were auctioneers, and on the 20th and 21st days of March, 1889, received goods on commission from defendant, making advances thereon in their usual course of business of $655, for which the defendants gave receipts which are substantially the same except as to date and amount:

p. 859

“ Received of L. & C. Wise - dollars on account of all goods consigned to them, the same to be sold at their discretion without limit as to time and price;->

“ (Signed.) Wm. Rosenblatt.”

Plaintiffs claim that they did their best to sell the said goods, but were unable to do so, and notified the defendant he should .come and take his goods away, returning the advance made by them. The defendant claims that the plaintiffs guaranteed that the goods should bring a certain stipulated amount and counterclaims and demands judgment against the plaintiff for $257. The justice appears not to have allowed the counterclaim, and found judgment foi the defendant without costs.

If the defendant’s testimony is to be believed, he was entitled to the counterclaim. The judgment in its present form is not authorized by the facts or practice, and should be reversed, with costs.

Bischoff, J., concurs.