Tannebaum v. Nikop

PER CURIAM. A prima facie case of sale and delivery was made out, and this judgment, which is assailed only upon the ground that a nonsuit should have been directed, must be affirmed. While the proof fell short of establishing an oral admission of delivery, in that the promise to pay the account was made to relate to no particular indebtedness, enough appears from the statements made in the books of the defendants’ firm, and from averments of record made with their consent and in their behalf for the purposes of the settlement of the partnership accounts, to disclose an actual admission that the firm was indebted to the < plaintiffs for the claim in suit. The orders of sale were proven by the testimony of the plaintiffs’ salesman, whose recollection was properly refreshed by memoranda, and the transaction was connected with the defendants’ admission of indebtedness, which admission supported a finding of the fact of delivery. Dugan v. Longstaff, 52 Misc. Rep. 288; 102 N. Y. Supp. 1120. Judgment affirmed, with costs.