Greater New York Tin & Tar Roofing Co. v. Goldsmith

The uncontradicted evidence in this case is that on or about May 11, 1910, one Jacobson, the secretary and treasurer *619-of the plaintiff company, received a telephone message to go to Ft. ■ George and do some repairing. He went there and had a conversation with a Mr. Bernstein, with the result that the plaintiff was employed to repair the roof of a building known as the “Old Mill” at Ft. George. After the contract was made, Jacobson asked Bernstein who would "be responsible for the bill, and in answer to this inquiry was instructed by Bernstein to call up the defendant in the Park Row Building, which he did and talked to a person there who said he yras the defendant. This conversation was to the effect that plaintiff should go ahead with the work, and he (defendant) would send a written authorization to - do the work the next day. On the following day the plaintiff received two letters, confirming the conversation and authorizing it to do the ■ work.

At the trial Jacobson testified that defendant admitted that he had signed these letters, and they were received in evidence. When the work was completed, the plaintiff’s secretary called on defendant, demanded payment, and was referred by him to his manager, Bernstein, who referred him back to defendant. The defendant agreed to pay plaintiff’s claim, but wanted time. Upon this state of the evidence, the trial justice dismissed the complaint, stating that plaintiff “should sue Bernstein.”

We are at a loss to understand what the learned trial justice based "his decision on, as the plaintiff clearly made out a prima facie case on the uncontradicted evidence. The dismissal of the complaint was error. Lomer v. Meeker, 25 N. Y. 361.

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