Gross v. R. & S. Outfitting Co.

[1] The plaintiff’s attorney testified that an officer of the defendant company came to him two or three days after the summons and complaint were served, and told him that the bill was due, and -he wanted to pay it, but he desired an extension of time. The complaint was for goods sold and delivered, and, if this admission' of the officer had been binding on the corporation, I think it wo'uld: have constituted a valid admission of the cause of action alleged in the .complaint. It is true that the evidence was incompetent, for it-was no.t part of the res gestae, and was not binding on the defendant. The defendant, however, did not object to the testimony on this ground, and the testimony was admitted, and no motion was ever made to' strike it out. I do not think that with this testimony in the case and undenied the trial justice had any authority to dismiss for failure of proof.

[2,3] The defendant also claimed that the plaintiff had no power to bring this action because he was enjoined by the bankruptcy court from collecting this account. The injunction order forbids the plaintiff from collecting or receiving this account, but it expressly permits his attorneys to collect the account and to retain in their possession the moneys so collected. I do not think that this order can be construed as forbidding the plaintiff from bringing an action on the account. Its intention in my opinion was to permit such an action if the amount of the judgment be received by the attorneys." In any event, however, the question whether the injunction is disobeyed concerns only the court which issued the injunction. Gibbons v. Bush Coi, Ltd., 115 App. Div. 619, 101 N. Y. Supp. 721.

Judgment should therefore be reversed and a new trial ordered, with costs to appellant to abide the event.

SEABURY, J., concurs.-

I dissent on the ground that the plaintiff wholly failed to prove his case.