Meister v. Sharkey's Monument Works

39 N.Y.S. 789 | N.Y. App. Div. | 1896

Willard Bartlett, J.:

The plaintiff’s husband, Conrad Meister, was employed for many years as a designer, salesman and superintendent in certain marble and granite works, carried on at first by one James Sharkey, and afterward by the defendant corporation as his successor in business. The administratrix brought this suit to recover a balance alleged to have been due for her husband’s services at the time of his death. At the conclusion of the evidence on both sides the trial court dismissed the complaint on the ground that the proof showed that the plaintiff’s intestate had been paid in full. The propriety of holding the defendant corporation liable as the successor of James Sharkey was not disputed by counsel for the respondent upon the argument of the present appeal, and the only question discussed was, whether the case ought to liave been sent to the jury or not, on the issue of payment.

The evidence to sustain this plea was found for the most part in time books in the shape of entries made by Conrad Meister himself, and it is apparent that the court below deemed these entries conclusive. There was testimony, however, in the case which deprived them of that character and raised an issue of fact. A daughter of Conrad Meister produced a paper entitled, “ Statement of Account, C. Meister,” of which she said her father gave Mr. Sharkey a copy on Washington’s birthday, 1891. This paper showed a balance due Meister on the seventeenth of February in thattyear of $3,481.47. The same witness testified that Mr. Sharkey, speaking of this paper, said to her father in her presence, on a subsequent occasion, that he had not had time to look over it yet; that it was of twenty-four years’ standing, and he wanted time to look over it, and that, at a still later interview, she heard him say to her father, “ If I was financially situated I would soon settle this matter up. I am not so at present.” This language on the part of Sharkey, if he used it, is difficult to reconcile with the defense now set up, that Meister had been fully paid, and if the jury had been allowed to pass upon the entries of Meister’s in the time books in the light of the daughter’s testimony as to what Sharkey subsequently said about her father’s claim, they might have reached the conclusion that the plea of payment had not been satisfactorily made out. At all events, there was enough in this evidence to require the submission of the case to the jury.

The judgment should be reversedj and a new trial granted, with costs to abide the event.

All concurred.

Judgment reversed and new trial granted, costs to abide the event.