Kelly Asphalt Block Co. v. Barber Asphalt Paving Co.
Appellate Division of the Supreme Court of the State of New York
Appeal by the plaintiff, the Kelly Asphalt Block Company, from a judgment of the Supreme. Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 17th day of April, 1909, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the Kings County Trial Term, in an action brought to recover damages for breach of an implied warranty on the sale of a quantity of asphalt paving blocks…
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Appeal by the plaintiff, the Kelly Asphalt Block Company, from a judgment of the Supreme. Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 17th day of April, 1909, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the Kings County Trial Term, in an action brought to recover damages for breach of an implied warranty on the sale of a quantity of asphalt paving blocks to be manufactured by the defendant. The parties to this action were competitive bidders for a contract to repave with…
1Opinion of the Court
Miller, J.:
The following questions were presented by the motion to dismiss: (1) Did the evidence tend to show that Booth was -the plaintiff’s agent ? (2) Though the agency of Booth were established, could the plaintiff recover.for breach of warranty collateral to a contract made in his name?. (3) Was there evidence tending to show a breach of warranty which survived acceptance of the blocks? (4) Was it necessary to plead the agency of Booth ?(1) The court excluded evidence to show the conversation between the president of the plaintiff and Booth resulting in the employment of the latter to…
2Cases cited6 opinions
- Boston Ice Co. v. PotterMassachusetts Supreme Judicial Court · 1877
- Carleton v. . Lombard, Ayres Co.New York Court of Appeals · 1896
- Buffalo Catholic Institute v. . BitterNew York Court of Appeals · 1881
- Moore v. Vulcanite Portland Cement Co.Appellate Division of the Supreme Court of the State of New York · 1907
- Henderson, Hull & Co. v. McNallyAppellate Division of the Supreme Court of the State of New York · 1900
1 more not listed; retrieve them via the Exa API.
3Cited by7 opinions
- Barrett Co. v. Panther Rubber Mfg. Co.Court of Appeals for the First Circuit · 1928
- Akwell Corp. v. EigerDistrict Court, S.D. New York · 1956
- Navarre Hotel & Importation Co. v. American Appraisal Co.Appellate Division of the Supreme Court of the State of New York · 1913
- Hawkins v. WindhorstSupreme Court of Kansas · 1912
- Arbitration Between Interbras Cayman Co. v. Orient Victory Shipping Co., S. A.District Court, S.D. New York · 1981
2 more not listed; retrieve them via the Exa API.