South Brooklyn Sawmill Co. v. Cronin , 91 Hun 229 ( 1895 )

DYKMAN J.

This is an appeal from a judgment and an order denying a motion for a new trial upon the minutes of the court. The action was for the recovery of $101, with interest, for goods sold and delivered by the plaintiff to the defendants. The answer admitted the claim of the plaintiff, and set up a counterclaim of $96, for the use of a pile driver, and the counterclaim was controverted by the plaintiff. The testimony of one of the defendants upon that subject was that Mr. Buckley, who was acting for the plaintiff, said to him;

“ T have got a big job down there,’ he says, ‘for you to hire a pile driver, and I told him $10 a day.’ Says 1, ‘Who is it for T He said, ‘McBean,—a fellow by the name of McBean.’ Says 1. T am told that this man is a great blower,’—so I heard,—‘and Buckley,’ says I, ‘1 will collect this bill from you.’ And Buckley says, T am all right; we are good for the bill;’ and so I gave it to Buckley.”

The true construction of that testimony is that the pile driver was hired to McBean, and Buckley was to collect the bill for the defendants. That arrangement imposed no liability upon the plaintiff, and constituted no counterclaim in favor of the defendants. The verdict was properly directed for the plaintiff, and the judgment and order denying the motion for a new trial should be affirmed, with costs. All concur.