Majority
p. 370Fred. Stone, Resp’t, v. John Devlin, App’lt. (New York Superior Court, General Term, Filed March 2, 1891.)
Headnote
Sale—Parties.Where the evidence when the plaintiff rests is such that the jury could properly find a sale and delivery of the goods in suit to defendant, and does not show that one R. was his partner, a refusal to dismiss on the ground of the non-joinder of R. as a party is proper.
Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial on the minutes.
Action for goods sold and delivered. Defendant claims that one John W. Rutherford should have been joined as a defendant, and moved to dismiss on that ground, which motion was denied.
Sanford H. Steele, for resp’t; Horace Graves, for app’lt.
This is an appeal from a judgment entered upon the verdict of a jury, and an order denying a motion for a new trial upon the minutes.
When the plaintiff rested his case, there was evidence from which the jury could properly conclude that the materials in suit were sold and delivered to the defendant, and that he was justly indebted to the plaintiff for the amount of the verdict.
The plaintiff’s case did not show that Rutherford was defendant’s partner.
p. 371
The charge presented the question at issue fully and fairly, and was subject to no valid exception.
The judgment and order should be affirmed.
•Truax, J., concurs.