Tidden v. Raab — 39 N.Y. St. Rep. 37

Majority

p. 37

George C. Tidden et al., Resp’ts, v. William Raab et al., App’lts.

(Supreme Court, General Term, Second Department,

Filed May 11, 1891.)

Headnote

Evidence —Weight of—Review.

In an action brought to recover for stained glass furnished by the plaintiffs for a house erected for R. by a contractor, the defense was'that the glass was sold to the contractor and not to the defendant. The evidence tended strongly to show that it was selected and ordered by the brother and sister of R. with her knowledge and approval, and that the amount was deducted from the contractor’s bill, and that R. said she would pay it to the plaintiffs. Held, that the verdict was well sustained and justified by the evidence.

Appeal from a judgment of Kings county circuit, entered on a verdict of a jury.

Action brought by George 0. Tidden and others against Barbara Raab. She dying during the pendency of the action, William Raab and Wilhelmina Raab, her executors, were substituted as defendants,, and they appeal. ;

Kellogg, Rose & Smith, (Abram J. Rose, of counsel), for app’lts Frank W. Arnold, for resp’ts.

—This action was commenced against Barbara Raab, who died after it was begun, and her executors were substituted as defendants.

The suit was brought to recover §248.99 for stained glass furnished by the plaintiffs for a house erected for Miss Raab by Mertz, and the defense was, that the glass was sold to Mertz, the contractor, and not to Miss Raab. That question was contested upon the trial and proof was offered by each party in support of their respective positions. There was considerable contradiction in the testimony, and the whole case was submitted to the jury by a charge which was plain and fair, and the plaintiff obtained the verdict, which is well sustained and justified by the evidence, and we think any other verdict would have been inconsistent with the proof.

The glass was furnished by the plaintiffs and used in the build

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ing, and the value was undisputed, and the testimony tended strongly to show that it was selected and ordered by the brother and sister of Miss Eaab, with her knowledge and approval, and as between her and the plaintiffs she became their debtor for the glass. There was also testimony that the amount was deducted from the bill of Mertz, and that Miss Eaab said she would pay it to the plaintiffs.

The judgment and order denying the motion for a new trial on the minutes should be affirmed, with costs.

Barnard, P. J., concurs.