
    Edward L. March, Appellant, v. Henry Hyman, Respondent.
    (Supreme Court, Appellate Term, First Department,
    December, 1914.)
    Sales — action for price — right to recover.
    Plaintiff, after purchasing the assets of the Detroit Stamping Company without assuming its liabilities, did business under the name of “ Detroit Stamp Company.” Held, that in an action for goods sold and delivered defendant was not entitled to be credited with the amount of his claim against the Detroit Stamping Company with which plaintiff had no connection.
    Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fourth district, entered in favor of the plaintiff in the sum of twenty dollars and forty-four cents against the defendant after a trial before the court without a jury.
    Wilber, Norman & Kahn (Samuel J. Reid, of counsel), for appellant.
    Schlesinger & Lazaroe (Jacob J. Lazaroe, of counsel), for respondent.
   Whitaker, J.

This is an action to recover the sum of $214.95 for goods sold and delivered.

Plaintiff resides in Detroit and was doing business under the name of the Detroit Stamping Company. The gopds were sold between November 4, 1911, and the 17th day of February, 1912, to the defendant, who is a resident of New York city.

The plaintiff was examined by a commission and testified that between September 9, 1911 and April, 1912, he was manufacturing caps for gas mantles and during that period was doing business under the name of “ Detroit Stamp Company,” that his business had no connection with the Detroit Stamping Company, a Michigan corporation, which corporation did no business after September 9,1911, at which time he bought all its assets but did not assume its liabilities. The testimony showed that plaintiff had no interest in that corporation directly or indirectly, that between November 4,1911 and February 17, 1912, he sold and delivered goods to the defendants amounting to $301.10; that defendant was entitled to and that plaintiff allowed him credits aggregating $86.15; that later he received a check from defendant for the sum of $18.44, upon the back of which check was shown the amount of the invoice of goods sold to defendant, to wit, $301.10, and the credit above mentioned; that the statement on the back of the check also showed a deduction which the defendant had made of $198.51, which snm the defendant claimed the Detroit Stamping Company, the corporation above mentioned, owed him; that plaintiff never cashed this check but turned it over to his attorneys. The evidence shows that this check finally came back to defendant.

The testimony of two witnesses taken by commission who were interested in the Detroit Stamping- Company, the corporation above mentioned, shows that plaintiff had no interest in the corporation. Samuel J. Reid, a member of the New York bar, testified that the defendant, with his attorney, called at his (Reid’s) office on October 23, 1912, and admitted receiving the merchandise from plaintiff as alleged in the complaint and that the account was correct; that defendant exhibited the check which defendant had sent with the account on the back, which check was described in the plaintiff’s testimony; that the defendant stated that the Detroit Stamping Company owed him $196.51 and that defendant would be willing to pay plaintiff’s claim if he would deduct the $196.51. He also showed the witnesses a check for $18.44, which was the amount of plaintiff’s claim after deducting $196.51. The defendant told the witness that he had sent this check to plaintiff who refused to accept it and had returned it to defendant. There are letters in evidence corroborating plaintiff’s claim. Defendant was not sworn as a witness and was not in attendance at the trial although he was subpoenaed by plaintiff. The defendant’s attorney refused to produce the check referred to which is said to have the account stated on the back of it and the evidence shows that it was either in his or his client’s possession. Notice to produce was served upon defendant’s attorney. The defendant called no witnesses. I am of the opinion that the plaintiff made out a clear case even without the testimony of Mr. Reid, the attorney. None of the witnesses was either impeached or contradicted, neither was their credibility in any way shaken.

Judgment of the Municipal Court should be in-. creased to the sum of $214.95, with interest and with appropriate costs in the court below, and, as modified, affirmed with costs of this appeal.

Lehman and Delany, JJ., concur.

Judgment modified and, as modified, affirmed, with costs.  