Brush & Stephens Co. v. Ross

51 Misc. 44 | N.Y. App. Term. | 1906

Leventritt, J.

All that can be gathered with any óertainty from the very complex and confusing complaint is that the plaintiff attempted, by means of four so-called causes of action, to set up four theories in the hope that perchance it might establish a single claim which, supposedly, existed against the defendant.

The origin of the claim is the sale and delivery of goods to a corporation known as Boss and Company.

After a studious examination of the complaint, we are of necessity driven to accept the plaintiff’s interpretation of the pleading, and that is briefed in this language: “ The first cause of action is on an account stated; the second, against the defendant as purchaser; the third, on his after-acquired ownership and promise to pay; and the fourth, upon his promise to pay the debt of Boss and Company.”

After certain special defenses had been stricken from the' answer as a result of a demurrer, there remained, in effect, a general denial except as to an item of fifteen dollars, which the defendant admitted he owed.

Some scattering evidence was offered, tending to support one or more of the causes of action enumerated, but not sufficient to sustain anyone of them.

An account stated could not be based on bills, made out to the defendant long after the sale of the goods to the corporation, merely because he retained them without objection, especially in face of the fact that bills covering the same claims had been rendered to the corporation at the time of the transactions. That was substantially all that was proven to establish the first cause of action.

As to the next, the plaintiff, in showing the foundation of its claim, necessarily proved that the purchaser was the corporation and not the defendant. The record does not disclose a word to the contrary. Consequently, that cause of action fell. The third met a similar fate because the plaintiff utterly failed to show “ after-acquired ownership of the goods ” by the defendant, even if proof of that fact could, by any possibility, have saved the cause of action.

And, finally, no consideration was shown for the alleged promise of the defendant to pay the debt of the corporation.

Although the case was not tried in the light of the plaintiff’s construction of its own pleading, the learned trial justice would have been correct in dismissing the complaint were it not for the admission of the defendant that he owed fifteen dollars. As the pleadings stood, the plaintiff could not be deprived of a recovery to that extent.

There is no occasion, however, to subject the parties to a new trial, as the error can be rectified on this appeal by way of modification. The fact upon which the modification rests .is conceded, and the error resulted from mere oversight. Snyder v. Seaman, 157 N. Y. 449; McNulty v. Mt. Morris El. Light Co., 172 N. Y. 410, 419.

The judgment as entered will be reversed and a judgment directed in favor of the plaintiff in the sum of fifteen dollars, without costs of this appeal to either party.

Gildersleeve and McCall, JJ., concur.

Judgment reversed and judgment directed in favor of plaintiff in sum of fifteen dollars, without costs of this appeal to either party.