South Brooklyn Saw Mill Co. v. Cronin — 98 N.Y. Sup. Ct. 229

Majority

p. 229

South Brooklyn Saw Mill Company, Respondent, v. Richard Cronin and Others, Appellants.

Headnote

Contract to collect a MU — evidence as to the party to whom the credit is given.

In an action brought to recover for goods sold and delivered to the defendants, the answer admitted the claim, but set up a counterclaim for the use of a pile driver. One of the defendants testified that Mr. Buckley, who was acting for the plaintiff, said to him: “ ‘I have got quite a big job down there for you to hire a pile driver.’ * * * Says I, ‘Who is it for?’ He said, ‘McBean.’ * * * Says I, ‘lam told that this man is a great blower — so I heard, and Buckley,’ says I, ‘I will collect the bill from you;’ and Mr. Buckley says, ‘I am all right, we are good for the bill,’ and so I give it to Mr. Buckley.”

Held, that the true construction of the testimony was that the pile driver was let to McBean, and that Buckley was to collect the bill;

That the arrangement imposed no liability upon the plaintiff, and constituted no counterclaim in favor of the defendants.

Appeal by tlie defendants, Richard Cronin and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 22d day of April, 1895, upon the verdict of a jury rendered by direction of the court after a trial at the Kings County Circuit, and also from an order denying the defendants’ motion for a new trial made upon the minutes.

James O. Church, for the appellants.

Hyland <& Zabrishie, for the respondent.

This is an appeal from a judgment and an order denying a motion for a new trial made upon the minutes of the court.

The action was for the recovery of $101, with interest, for goods sold and delivered by the plaintiff to the defendants. The answer admitted the claim of the plaintiff, and set up a counterclaim of ninety-six dollars for the use of a pile driver, and the counterclaim was controverted by the plaintiff.

The testimony of one of the defendants upon that subject was that Mr. Buckley, who was acting for the plaintiff, said to him: “‘I have got quite a big job down there,’ he says, ‘for you to hire

p. 230

a pile driver,’ and I told him $10.00 a day; says I, £ Wlio is it for ? ’ He said, £ McBean, a fellow by the name of McBean.’ Says I, ‘ I am told that this man is a great blower — so I heard, and Buckley,’ says I, £ I will collect the bill from yon,’ and Mr. Buckley says, £ I am all right, we are good for the bill,’ and so I give it to Mr. Buckley.”

The true construction of that testimony is that the pile driver was hired to McBean, and that Buckley was to collect the bill for the defendants.

That arrangement imposed no liability upon the plaintiff, and constituted no counterclaim in favor of the defendants.

The verdict was properly directed for the plaintiff, and the judgment and order denying the motion for a new trial should be affirmed, with costs.

Brown, P. J., and Pratt, J., concuried.

Judgment affirmed, with costs.