Kirchner v. Otto — 63 N.Y. St. Rep. 306

Majority

p. 306

Michael Kirchner, Resp’t, v. Peter Otto, App’lt.

{New York Oily Court, General Term,

Filed November 20, 1894.)

Headnote

Evidence—Receipt.

A receipt by defendant for goods sold and delivered is proof of a sale to liim individually, and not to a firm of which lie claims to be a member.

Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

Menken Bros., for app’lt; Wagnet & Ackner, for resp’t.

The record shows that plaintiff produced, - on the trial, receipts signed by Peter Otto, the defendant, for $218.50 worth of materials delivered by him -to defendant, and plaintiff admitted a payment of $50; while defendant contended that the entire amount had been paid, and, moreover, claimed that he had informed plaintiff that he had taken a partner, and that, therefore, he was not individually liable for a part of the materials, but jointly with this partner, who was not made a party defendant. These receipts, signed “Peter Otto,” are proof that the materials were sold and delivered to him ; and that it was not error for the court to instruct the jury to find for the plaintiff for the balance of $168.50, unless they should determine that the defendant had paid the same, as he claimed by his evidence. • The verdict for plaintiff for such balance and interest is not against the weight of evidence, and the judgment and order are affirmed, with costs.