Talbot v. Laubheim

Decision Date10 May 1907
Citation81 N.E. 163,188 N.Y. 421
PartiesTALBOT v. LAUBHEIM et al.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Appeal from Supreme Court, Appellate Division, First Department.

Action by William H. Talbot against Max Laubheim and another, as administrators with the will annexed of Samuel Laubheim, deceased, and others. From a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (96 N. Y. Supp. 1148,111 App. Div. 915), affirming a judgment for plaintiff entered upon a verdict directed by the court, and from an order denying the defendants' motion for a new trial, defendants appeal. Affirmed.Louis Zinke, for appellants.

George C. Harrison, for respondent.

CHASE, J.

This action is brought for goods sold and delivered by the plaintiff's assignor to the defendants as originally named in the action. The defendant Samuel Laubheim died after the commencement of the action, and by consent the administrators with the will annexed of said Samuel Laubheim, deceased, were substituted as defendants in his place and stead. The defendants appeared generally and interposed an answer to the plaintiff's complaint, in which they denied the material allegations thereof, and also alleged therein certain defenses and counterclaims. On the trial the plaintiff produced evidence showing that his assignor from time to time furnished bullion for the Camm Watch Case Company, a corporation, and that said watch case company solicited orders for watch cases that it might make the same from the bullion so furnished by the plaintiff's assignor, and that the plaintiff's assignor paid for the manufacture of said cases and carried out the contracts so made by the watch case company in his name. The secretary and treasurer of said watch case company, acting for the plaintiff's assignor, agreed with said Samuel Laubheim to make 75 plain watch cases at a price named. The cases were subsequently made and delivered to plaintiff's assignor. Plaintiff's assignor sent the watch cases, with a bill therefor, to be delivered to Laubheim Bros., in New York City. Subsequently the plaintiff, who is his assignor's general manager in the assignor's business in New York City, saw all, or nearly all, of the cases in the safe at the store of Laubheim Bros. The plaintiff then offered in evidence from the answer of the defendants the following allegation: ‘That in violation of the contract or agreement under which the aforesaid cases were sold and delivered to these defendants.’ The remaining part of the paragraph of the answer from which the alleged admission is taken is as follows: ‘There was charged, and the defendants are informed and verily believe, there is included in the amount claimed in the complaint herein the sum of $14.77 for alleged overweight, and that, in fact, there was no overweight in the said goods; and that these defendants therefore likewise counterclaim and set off said sum of $14.77 against any recovery that may be had by the plaintiff herein.’ The parties rested, and the court directed judgment in favor of the plaintiff for the amount claimed by him, less $14.77, the amount so alleged in the answer as a counterclaim, and from the judgment entered thereupon an appeal was taken to the Appellate Division of the Supreme Court, where the judgment was unanimously affirmed (111 App. Div. 915,96 N. Y. Supp. 1148),and from such judgment of affirmance the appeal is taken to this court.

The defendants claim that the plaintiff failed to prove a cause of action. The evidence was fragmentary, disconnected, and not very conclusive, but we are unable to say that there is not some evidence to sustain the judgment directed by the court. The defendants also claim that errors were committed by the trial court in its rulings:

1. In allowing admissions contained in the counterclaim to be considered as evidence on the trial of the action. A defendant may interpose as many defenses or counterclaims, or both, as he has, whether they are such as were formerly denominated legal or equitable (Code Civ. Proc. § 507), and, although an objection that the defenses or counterclaims are inconsistent is not available (Bruce v. Burr, 67 N. Y. 237;Societa Italiana v. Sulzer, 138 N. Y. 468, 34 N. E. 193), the pleading, so far as it alleges new matter constituting a defense or counterclaim, must contain a statement in...

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16 cases
  • Brockett v. Jensen
    • United States
    • Connecticut Supreme Court
    • 13 Diciembre 1966
    ...against the pleader is to be determined by the court or jury the same as other evidence offered on the trial. Talbot v. Laubheim, 188 N.Y. 421, 424, 81 N.E. 163.' Wilcox v. Downing, 88 Conn. 368, 375, 91 A. 262, 264. The court was also entitled to consider the fact that the car was register......
  • Kraus v. Birnbaum
    • United States
    • New York Court of Appeals Court of Appeals
    • 6 Diciembre 1910
    ...answer, notwithstanding a denial therein, can always be taken as some evidence against the person making the admission. Talbot v. Laubheim, 188 N. Y. 421, 81 N. E. 163. Taking all of the answer in this case, however, and the undisputed testimony that we have mentioned, the statement in the ......
  • Dodge v. Richmond
    • United States
    • New York Supreme Court — Appellate Division
    • 16 Febrero 1960
    ...would still be for the fact finder to determine (Gangi v. Fradus, 227 N.Y. 452, 456-457, 125 N.E. 677, 679; Talbot v. Laubheim, 188 N.Y. 421, 424-425, 81 N.E. 163, 164-165; Richardson, Evidence [8th Ed.] §§ 295, 307; 31 C.J.S. Evidence §§ 380-382). In making such determination great weight ......
  • Reynolds v. Snow
    • United States
    • New York Supreme Court — Appellate Division
    • 15 Marzo 1960
    ...testimony of the child's mother in an action for support of the child under an agreement with the child's grandmother; Talbot v. Laubheim, 188 N.Y. 421, 81 N.E. 163; Hobart v. Hobart, 62 N.Y. 80; Greenfield, op. cit., §§ 30-92; Richardson, Evidence [8th Ed.] § A more difficult problem is wh......
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8 books & journal articles
  • Table of Cases
    • United States
    • James Publishing Practical Law Books Archive New York Trial Notebook. Volume 2 - 2016 Trial motions and post-verdict proceedings
    • 9 Agosto 2016
    ...Ct New York County 1983), §15:72 Taino v. City of Yonkers , 43 AD3d 401, 840 NYS2d 419 (2d Dept 2007), §§22:45, 29:132 Talbot v. Laubheim , 188 NY 421, 81 NE 163 (1907), §28:50 Talvy v. American Red Cross in Greater New York , 205 AD2d 143, 149, 618 NYS2d 25, 29 (1st Dept 1994), affirmed 87......
  • Presenting Nontestimonial Evidence
    • United States
    • James Publishing Practical Law Books Archive New York Trial Notebook. Volume 2 - 2022 Trial
    • 18 Agosto 2022
    ...if they are otherwise material. Veriied pleadings may be used as admis-sions against the party making them. [ See Talbot v. Laubheim , 188 NY 421, 81 NE 163 (1907) (weight to be given admissions in pleadings that are themselves conclusive against pleader is to be determined by trier of fact......
  • Presenting Nontestimonial Evidence
    • United States
    • James Publishing Practical Law Books New York Trial Notebook - Volume 1 Trial
    • 3 Mayo 2022
    ...if they are otherwise material. Verified pleadings may be used as admissions against the party making them. [ See Talbot v. Laubheim , 188 NY 421, 81 NE 163 (1907) (weight to be given admissions in pleadings that are themselves conclusive against pleader is to be determined by trier of fact......
  • Presenting Nontestimonial Evidence
    • United States
    • James Publishing Practical Law Books Archive New York Trial Notebook. Volume 2 - 2019 Trial
    • 18 Agosto 2019
    ...if they are otherwise material. Verified pleadings may be used as admissions against the party making them. [ See Talbot v. Laubheim , 188 NY 421, 81 NE 163 (1907) (weight to be given admissions in pleadings that are themselves conclusive against pleader is to be determined by trier of fact......
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