
    Henry Spring, Appellant, v. Samuel Markowitz, First Name Fictitious, etc., Respondent.
    
      Evidence—when insufficient to sustain a claim to one-hailf of the profits of a sale of goods.
    
    When the proof given by the defendant in an action, in support of a counterclaim interposed by him for one-half of the profits realized on the sale of certain goods, is too indefinite and uncertain to warrant the court in allowing such counterclaim, considered.
    Appeal by the plaintiff, Plenry Spring, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, entered on the 23d day of April, 1904, after a trial before the court without a jury.
    
      Moses Jaffe, for the appellant.
    
      Maurice Nagler, for the respondent.
   Hirschberg, P. J.:

The plaintiff sues to recover the sum of fifty-eight dollars and forty-five cents, which he loaned to the defendant in the month of January, 1904. The defendant denied the loan in his answer, but it was conceded upon the trial. The defendant set up three counterclaims, which the court has allowed him in full, after deducting the amount of the plaintiff’s qlaim for the money loaned. Two of the counterclaims are of trifling amounts, the main one being for a share of the profits in a merchandise transaction.- This counterclaim was not established by legal evidence, and its allowance constitutes reversible error.

The plaintiff purchased some “ bargain goods,” as they were called, in January, 1904, with the defendant’s aid, advice and assistance, and it was agreed that in consideration of such aid the plaintiff would share the profits with the defendant. The price paid by the plaintiff for the goods was $1,256.54. The defendant alleges in his answer on information and belief that the profits amounted to $700 and upwards, and the judgment appealed from awards him $350 on that account. The goods were taken possession of and stored by the plaintiff, and whatever sales were made and expenses incurred were made and incurred by him. The defendant had no personal knowledge of the details of the transaction, yet he was permitted to give an estimate of the amount of the profits realized on the faith of his general statement that lie knew what they were. This was received under objection. The defendant also produced the vendor of the goods as a witness, and he was permitted to testify that they would easily realize forty per cent of profit on their cost to the plaintiff. The defendant moved to strike out this evidence, and the motion was denied. The only sales which the defendant proved to have been made amounted to the sum of $1,011.05. He made no proof of the expenses incurred, or of the extent and value of the goods remaining after the sales, excepting that a witness was permitted to testify generally in his behalf that after the sales in question there were left $800 or $900 worth of goods. This evidence was also received under objection. There was no pretense that any inventory had been taken, and no evidence given as to how the amount was arrived at. No basis in fact was furnished for the opinion of the witness, and it was obviously a mere estimate or guess without definite foundation.

The plaintiff gave evidence on the other hand which tended to show that the profits of the transaction amounted to only the sum of $258.65. In arriving at that result he admitted sales amounting to $1,225.45, and testified to expenses incurred amounting to $95.26, admitting a balance of goods on hand and unsold amounting to $385. While, of course, the court was not bound to adopt his figures where contradicted, or where any circumstances exist to cast suspicion upon them, they could not be successfully overborne by the mere general estimates of others as to what should or might have been accomplished in the venture, not supported by some definite proof of knowledge on their part or accompanied by the details and items by which the purported results have been reached.

The judgment should be reversed.

All concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  