Conabeer v. Bruenn ( 1910 )

BIJUR, J.

This action was brought for $25, value of four tons of coal delivered on November 3, 1908, and used in premises under lease to defendant, namely, two “hot-water flats.” Plaintiff’s testimony is that this coal was ordered by the janitor in the usual way, and that defendant had paid for coal previously ordered in the same way for more than a year. Plaintiff also testified to conversations had with defendant, in which the latter apparently fully confirmed the janitor’s authority in the premises.

Defendant, who took the stand on his own behalf, merely denied having one of these conversations with the plaintiff about this particular coal in suit. No motion to dismiss was made at the close of plaintiff’s case, and defendant’s testimony certainly did not negative plaintiff’s proofs. A dismissal, therefore, on the merits, was not only unwarranted, but a dismissal under any circumstances was error. Clark v. Scovill, 133 App. Div. 821, 118 N. Y. Supp. 235.

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