Funk & Wagnalls Co. v. Bruenn

142 N.Y.S. 291 | N.Y. App. Term. | 1913

BIJUR, J.

This action was brought to recover the balance of the purchase price of a set of books alleged to have been bought by defendant from plaintiff.

The only proof that defendant had made the contract of purchase was offered by an agent of plaintiff in the shape of conversations he claimed to have had with defendant. On cross-examination, it appeared that these conversations had been held over the telephone, and that plaintiff had never seen the defendant and did not know him. The only basis for assuming that he had conversed with the defendant was that at the office of a large corporation, which he had called up, he had asked for a person by defendant’s name, and some one had responded. Defendant’s attorney then moved to strike out all this evi- and excepted to a denial of his motion. It is not necessary to cite authorities to the effect that the evidence was incompetent.

Other error was also committed by the learned trial judge in admitting a copy of an agreement without proof that the original was not available.

Judgment reversed, and new trial granted, with costs to appellant to" abide the event. All concur.