Consumers Brewing Co. v. Lipot , 47 N.Y.S. 718 ( 1897 )

Schuchman, J.

Appeal from a judgment entered oñ a verdict rendered' By a jury,' and from an order denying a motion for á new trial, made on the judge’s minutes:

■ The action is Brought to recover the value of goods sold and delivered, and the answer interposed therein admits the sale o-f the. goods, hut denies the value thereof, and. that he agreed to pay the ' price therefor, as alleged in the complaint, and sets up a separate defense, that he bought the goods, which- were delivered to him during a week, on a credit of one week.

The judge’s charge, that .the burden is upon the plaintiff to establish his case (cause of action) by a preponderance of evidence was right. Whitlatch v. Fidelity Co., 149 N. Y. 45.

The plaintiff failed to request the court to charge that as far as the defendant’s affirmative defense of unexpired credit was concerned, the burden of proof was on defendant.

The appellant’s point that there is no proof when the action was commenced is not available; because appellant’s attorney told the jury that the action was commenced on March 15, 1897, and acceding that fact, submitted the cause for determination to the jury.

The evidence submitted by the defendant clearly shows that for one week’s delivery of beer (from Thursday to Thursday) he was to have one week’s credit.

The verdict is not against the weight of evidence, and the judgment and order appealed from are, therefore, affirmed, with' costs.

Fitzsimons, J., concurs.

Judgment and order affirmed, with costs.