Opinion
March, 1899.
Max D. Steuer (A.S. Levy, of counsel), for respondent.
Eugene I. Yuells (Jacob Barnett, of counsel), for appellant.
This appeal brings up for review a judgment entered upon a verdict and an order denying a motion for a new trial.
Plaintiff brought his action against defendant to recover for the alleged value of goods and material sold, furnished and delivered to a friend of defendant, upon his, defendant's, request, and had a verdict for the sum of $118.82.
We think the judgment and order appealed from should be reversed. There is no evidence to support the verdict, except as to the sum of $35, and as to the rest the verdict is against the weight of evidence.
The only possible recovery, justified under the evidence, would be the sum of $35, and the right to have even that, being denied by defendant, and plaintiff not having charged to Sagor the goods furnished to Cooper, the transaction was not taken out of the control of the Statute of Frauds, and was void. If this were not so, and the statute did not apply, still the verdict was against or not supported by the weight of evidence and would have to be set aside. 11 Misc. 340; 138 N.Y. 517; 145 N.Y. 408.
Judgment and order appealed from reversed and new trial ordered, with costs to appellant to abide the event.
FITZSIMONS, Ch. J., and McCARTHY, J., concur.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event.