51 Barb. 212 | N.Y. Sup. Ct. | 1868
The defendants sold to one Blatner a box of glass. The plaintiff was doing the carpenter work of a building for Blatner, and discovering that the glass did not fit, it was agreed between Blatner and the plaintiff, that the latter should furnish glass that was suitable and take the glass in question in exchange therefor, and the plaintiff did so provide the glass, and left the box of glass in question in the building. The defendants, by the direction of Blatner, took back the box of glass to the store and the plaintiff called for and demanded the same of Stephen H. Mix one of the defendants. The plaintiff states the interview as follows: “ Saw Stephen H. Mix there; said I came after my box of glass; he said what box of glass ? I said, the one belonging to me that was in Blatner’s building; said I was informed he had taken it; he said he had taken it away; asked him if he would please give it to me; (said not unless I would get an order from Blatner, or his father;; I said I did not want to lose time going after Blatner or your father for an order for my property.”
On a cross-examination, the plaintiff further testified, “I left the one in question (box glass) at Blatner’s; Mix said if I got an order from Blatner, I might have them; he said he took them from Blatner’s, did not know who they belonged to.”
Stephen H. Mix testified: “It (the glass) was taken by direction of Blatner; when the plaintiff came there I did not know he had any thing to do with it; so told him;
Ingalls, Hogeboom and Peckham, Justices.]
The judgment of the county court and of the justices’ court must be reversed, with costs.