Citation Numbers: 114 N.Y.S. 817
Judges: Giegerich
Filed Date: 2/5/1909
Status: Precedential
Modified Date: 11/12/2024
The action is to recover the value of a coat alleged to have been delivered to the defendant upon agreement that it was to be paid for if approved; otherwise, to be returned to the plaintiff. The answer was in effect a general denial.
The plaintiff proved that the defendant and his wife called at the plaintiff’s store, where they were shown a woman’s chinchilla coat, which, however, was too short; that the saleswoman told them that she had another coat out on approval, which she would get back and send to them at the Hotel St. Regis, where they were living, and that the price would be $985 if accepted; that on the following Monday the coat was given to one Bartholomew Sheehan, an employé of the plaintiff, to deliver to the defendant’s wife at the St. Regis, which he testified he did a few minutes after 6 o’clock that evening.
Upon such a state of the evidence and such an offer of proof the court ruled that the defendant “must connect Mrs. McMahon (the plaintiff) with the delivery of the coat directly or by such a state of circumstances as that the jury may infer that she was a party in obtaining this coat from Mr. Rothchild for the purpose of cheating and defrauding Mr. Rothchild,” or else no defense was made out. This ruling, we think, was clearly erroneous. Upon the facts in evidence, and the further facts which the defendant’s counsel offered to prove (there being no objection from the plaintiff’s counsel to that method of bringing the matter before the court for a ruling), it would have' been permissible for the jury not only to discredit the remarkable story of the discharge of the Zucker boy and find that he was in fact in the employment of the plaintiff at the time he called for the coat, but to go further and find-that he called for it by her authority, conferred either directly or through her employés who were handling the transaction on her behalf.
The judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event. , All concur.