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as though so enacted in express words. See, also, Fiero, Spec. Proc. p. 519. It follows that, since the proceeding was unauthorized in the first instance, the receiver appointed thereunder was without power to maintain the action now before us. Our conclusion does not leave a creditor of a foreign corporation with property in the state, but with no place of business therein, remediless, as is contended by respondent to be the case. Equity can afford relief under a state of facts similar to those before us, as was done, but without preferences, in Redmond v. Hoge, 3 Hun, 171. The judgment should therefore be reversed, and judgment absolute, for dismissal of the complaint, should be directed in favor of the defend. ants, with costs.
(4 Misc. Rep. 534.)
SCHWARTING V. BISLAND. (Common Pleas of New York City and County, General Term. August 9, 1893.) HUSBAND AND WIFE-MONEY LOANED WIFE-LIABILITY OF HUSBAND.
A husband is not liable for money loaned his wife, whether it is used by her in paying for necessaries or not, in the absence of proof that the husband knew of, or assented to, such loans. Appeal from tenth district court.
Action by Henrietta R. Schwarting against Alfred Bisland for goods sold and delivered, and for money loaned, to defendant, through the medium of his wife, as his agent, by Charles W. Schwarting, plaintiff's assignor. Plaintiff claimed on the trial that the wife stated, in connection with the requests for money, that it was wanted for the purpose of paying for certain specified family necessaries. Defendant claimed that the wife used the money for luxuries. From a judgment in her favor for the value of the goods, only, plaintiff appeals. Affirmed.
Argued before BISCHOFF and GIEGERICH, JJ.
BISCHOFF, J. The action was brought to recover the sum of $122.78 for goods sold and money loaned by plaintiff's assignor to defendant, through the medium of his wife, as his alleged agent. The amount claimed for the goods sold was $23.41, and the count below rendered judgment in favor of the plaintiff for the value of such goods, no recovery being had for the money loaned. From this judgment in her favor the plaintiff appeals to this court. The only question for our determination is, does the plaintiff's case, as made out, entitle her to a recovery against the defendant for money furnished to defendant's wife by plaintiff's assignor, a tradesman patronized by defendant? In order that recovery may be had against a husband for goods furnished to his wife, the plaintiff must show that the goods so furnished were suitable to the wife's position, and necessary to her maintenance, and that she was not otherwise provided for. Arnold v. Allen, 9 Daly, 198;
McQuhae v. Rey, (Com. Pl. N. Y.) 23 N. Y. Supp. 16; Bloomingdale v. Brinckerhoff, (Com. Pl. N. Y.) 20 N. Y. Supp. 858. With regard to the money furnished the wife in this case, this burden was in no way successfully sustained by the plaintiff upon the trial. Moreover, the rule that a husband may be so charged does not apply to a case where money is loaned to the wife. Anderson v. Cullen, (Com. Pl. N. Y.) 8 N. Y. Supp. 643. There is no proof that the defendant knew of, or assented to, the loans for which recovery is sought, and, in the absence of such proof, his assumption of responsibility for such supplies as should be furnished to his wife does not justify the interpretation that he assumed responsibility for anything other than what he might have reasonably expected that the tradesman would furnish in the ordinary course of his trade. The decision of the court below was in all respects correct.
(4 Misc. Rep. 606; mem. report without opinion.)
ROBINSON V. HEIMBECKER. (Common Pleas of New York City and County, General Term. August 9, 1893.) ACTION FOR MISREPRESENTATIONS-SUFFICIENCY OF EVIDENCE.
In an action to recover for misrepresentations by defendant as to his competency to teach photo-engraving, whereby defendant was induced to pay him for instruction in advance, plaintiff testified that defendant was incompetent, and a witness for plaintiff testified that defendant, while in his employ, had spoiled some plates, but it appeared that this witness discharged defendant because he was unable to work rapidly. Defendant and other witnesses testified to defendant's competency. Held, that plaintiff's burden of proving false representations was not sustained. Appeal from fourth district court.
Action by John W. Robinson against Henry H. Heimbecker for false representations. From a judgment for plaintiff, defendant appeals. Reversed.
Argued before BISCHOFF and GIEGERICH, JJ.
GIEGERICH, J. This action was brought to recover the sum of $75 damages for false and fraudulent misrepresentations alleged to have been made by the defendant to the plaintiff, whereby the latter was induced to pay such aforesaid sum as consideration, under the following agreement:
“In consideration of the sum of $75 paid to me, for which this is the receipt, I agree to teach John Robinson all the trade secrets of photo-engraving of which I am possessed, as well as the practical teaching and all the formulas connected with it. [Sg.] H. H. Heimbecker."
The manner in which the complaint is framed favors the view that the action is in tort, but, assuming that it may possibly have been intended to be brought upon the contract, the plaintiff's testimony to the effect that he himself failed to continue performance in the first instance, and defendant's uncontradicted testimony that he was ready to perform at any time, would preclude a recovery upon any such theory. We take the view, then, that recovery is sought by reason of the alleged misrepresentations by defendant as to his competency to teach the plaintiff the trade of photo-engraving; and, upon this assumption, it seems obvious to us that the plaintiff has wholly failed to sustain the burden of proving such misrepresentations. The only positive testimony with regard to defendant's lack of ability is given by the plaintiff himself, who, by his own assertion, is not instructed in the trade. This testimony could be of weight only if given by one well versed in the same trade as that with regard to which another's competency is sought to be questioned. The plaintiff was confessedly not versed at all in the trade of photo-engraving, and defendant is uncontradicted in his testimony as to his long experience. There was no objection to this testimony of the plaintiff upon the trial, but its inherent incompetency is to be considered in determining the weight of the evidence. Plaintiff's witness Davis, defendant's former employe, testified that defendant spoiled some plates; but, considering all of his testimony, we find that his real reason for discharging the defendant was that he was not a rapid worker. This would not affect his ability to impart his knowledge of the trade to the plaintiff, nor does it tend to show any lack of such knowledge. The testimony of the witness Smith does not add sufficient weight to the plaintiff's case. The mere fact that the work he mentions was returned receives little additional importance from his nonexpert opinion as to the manner in which such work was done. The testimony of the defendant and his witnesses clearly outweighs the slight evidence given in support of plaintiff's cause of action. We conclude from the whole testimony that the weight of evidence is with the defendant to such a degree that plaintiff's burden of proving the false representations has in no way been sustained. As to the note, of which mention was made on the trial, we can only say that, if it had any probative force, it would be as evidence of an accord and satisfaction; but it not having been paid at maturity, and the same having been re turned to the defendant, the plaintiff was restored to his original rights, and his remedy lay either in tort or upon the contract as before. The judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event.
(4 Misc. Rep. 604.)
BOYD et al. v. FUMONTE. (Common Pleas of New York City and County, General Term. August 9, 1893.) APPEAL-REVIEW-CONFLICTING EVIDENCE.
A judgment rendered on conflicting evidence will not be disturbed on appeal on questions of fact. Appeal from second district court.
Action by Francis O. Boyd and another against Louis A. Fum. onte. From a judgment for plaintiffs, defendant appeals. Af firmed.
Argued before BISCHOFF and GIEGERICH, JJ.
BISCHOFF, J. The action was brought to recover for wines sold and delivered by plaintiffs to defendant. Upon the trial, plaintiffs' salesman testified that he was ignorant of any copartnership existing between defendant and Coari, and that the wines were sold to defendant upon the latter's credit. Defendant testified that he and Coari were partners, and that plaintiffs' salesman was 80 informed at the time of the sale. Next plaintiffs introduced evidence to show that Coari's check was accepted in payment con. ditionally only, to wit, that it was to be credited in payment if paid on presentation. This also defendant attempted to refute. It was conceded that the check was not paid. Upon the conflict of evidence the court below decided in favor of plaintiffs for the agreed purchase price, as it was quite competent for it to do. Defendant has therefore not sustained the burden of showing error, and the judgment appealed from must be affirmed, with costs.
(4 Misc. Rep. 535.)
GROUSE V. WOLF. (Common Pleas of New York City and County, General Term. August 9, 1893.) SALE-RESCISSION-ACTION FOR PURCHASE PRICE.
After sale, delivery, and acceptance of an article, the purchaser offered to return it, and did take it to a place where the seller assumed possession, and thereafter sold it to another. Held, that there was a rescission of the first sale, and therefore an action would not lie against the purchaser at such sale for the purchase money. Appeal from ninth district court.
Action by Solomon M. Grouse against Elias Wolf for the purchase money of a truck. From a judgment for plaintiff, defendant appeals. Reversed.
Argued before BISCHOFF and GIEGERICH, JJ.
BISCHOFF, J. As we understand plaintiff's testimony, it was to the effect that he sold and delivered a truck to defendant, which the latter accepted, and for which he agreed to pay the sum of $150; that, some time after the delivery and acceptance of the truck, defendant offered to return it, and did in fact take it to the premises of L. Ullman & Co., where plaintiff assumed possession, and subsequently again sold the truck to Cowperthwait & Co., for $60. This was all the evidence which was adduced on the trial, and a judgment for plaintiff thereon is clearly erroneous. It was competent for the parties to rescind the sale of the truck by mutual agreement to that effect, and that they did so is indisputable from plaintiff's admission that the truck was returned to him, and that he thereupon sold it to others. After such rescission, plaintiff was not entitled to the purchase money which defendant had agreed to pay, and, if the latter had paid any sum on account, he was entitled to return thereof. Fulton v. Insurance Co., (Com. Pl. N. Y.) 23 N. Y. Supp. 598. The judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event.
(4 Misc. Rep. 597; mem. report without opinion.)
ENRIGHT v. SEYMOUR. (Common Pleas of New York City and County, General Term. June 5, 1893.) APPEAL-SUFFICIENCY OF EVIDENCE.
In an action for money paid at defendant's request, plaintiff testified to the making of such a request by defendant, and defendant denied it. A number of witnesses testified that plaintiff's reputation for truth was bad.
Held, that a judgment for plaintiff would be reversed as against evidence.
Appeal from tenth district court.
Action by Jeremiah Enright against James M. Seymour for money paid at defendant's request. From a judgment for plaintiff, defendant appeals. Reversed.
Henry Thompson, for appellant.
BISCHOFF, J. Upon all the evidence I am decidedly of the opinion that the judgment of the court below is emphatically against the weight of the evidence, and that it should be reversed, and a new trial ordered. Plaintiff sued defendant to recover the sum of $250, which he claimed to have paid to one John Perdue at de. fendant's request, for the purpose of effecting a settlement of differences between defendant and one Michael Crogan, which arose from an altercation between Crogan and defendant's son and servants. Assuming the evidence to be sufficient to show that plaintiff paid the sum to Perdue, it still remained to ascertain that it was so paid at defendant's request; and the burden of proof in that respect rested with plaintiff. The latter testified to the fact of such a request. Defendant testified in denial of it. This at most created a conflict of testimony, which the trial justice could determine upon the degree of credibility which he saw fit to attach to the statements of the witnesses, respectively, after making due allowance for their personal interests in the result of the litigation, and their manner and appearance on the witness stand; and with his determination under such circumstances only we should hesitate to interfere. But there was also testimony of a number of witnesses from which it appeared that plaintiff's general reputation for truth and veracity was bad, and that he was not to be believed under oath. A due consideration of that evidence cannot, in my opinion, fail to de termine the preponderating effect of all the evidence in defendant's favor. The judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.
PRYOR, J. I concur with Judge BISCHOFF in the conviction that plaintiff's story is incredible, and his claim altogether untenable.