Girbekian v. Cairo Cigarette Co.

94 N.Y.S. 345 | N.Y. App. Term. | 1905

SCOTT, P. J.

There is absolutely no evidence to sustain a judgment against the defendant. Nearly all the evidence admitted in behalf of the plaintiff was incompetent, and even if it had been competent it tended to show affirmatively that plaintiff was not entitled to the judgment which he recovered. The plaintiff sued for the value of services alleged to have been rendered to the defendant, a New York corporation. The evidence showed that the bulk of the services were rendered before this defendant was organized at all. The evidence left it in some doubt whether the services were rendered for an individual named Haig P. Cutchin, or a New Jersey-corporation bearing the same name as this defendant. At all events and beyond all question these services were not rendered to this defendant, which had not yet come into existence. The plaintiff undertook to sustain his action upon the theory that he rendered services to the New Jersey corporation, and that the defendant afterward assumed the liability. In the first place, this is not the cause of action set forth in the complaint, and, in the second place, there is no legal evidence of such an assumption. All that appears is that one Tekerian entered plaintiff’s claim as an indebtedness in the books of the New Jersey corporation, and that that book subsequently came into the possession of defendant. It does not appear that the defendant ever received or accepted the benefit of these particular services of plaintiff, or that' the defendant took over the assets of the New Jersey corporation. What has already been said applies to $335 of the claim in suit. How the remainder of the sum for which judgment was rendered was arrived as it is impossible to tell from the evidence. Perhaps it will be made clear upon a new trial.

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