Jacob Ruden and Another, Copartners, etc., Appellants, v. Louis Saltzman, Respondent

Jacob Ruden and Another, Copartners, etc., Appellants, v. Louis Saltzman, Respondent. [MAJORITY] Judgment reversed on the law and the facts, and a new trial granted, with costs to appellants to abide the event. At the close of plaintiffs’ case the evidence presented a question of fact to be determined by the jury on the issues presented by the pleadings, whether the goods were delivered as claimed by plaintiffs, and as indicated by the receipted delivery slips signed by defendant’s agent admitted in evidence and thereafter erroneously stricken out. There was also evidence that plaintiffs had delivered their bill, that defendant had asked for a week’s delay in paying it, and later offered to pay if plaintiffs would deduct ten per cent. Whether plaintiffs’ former driver was telling the truth about overweight was also for the jury. Plaintiffs should have been allowed more latitude in examining this witness to ascertain the real reason for his alleged return to honest dealing. It is remarkable that any such system of overcharging and overweighing on every delivery from April up to the time defendant changed to another butcher could have prevailed without defendant’s knowledge. The learned judge said the evidence in plaintiffs’ case was “ incredible ” on the merits, and that he would not submit it to the jury. It does not seem “ incredible ” on the record before us, and in any event such matters are to be determined by the jury. Kelly, P. J., Rich, Jaycox, Kelby and Kapper, JJ., concur.