Gelman v. Joseph P. Day, Inc.

Judgment affirmed, with costs, upon the authority of Gelman v. Day, Inc. (227 App. Div. 607). This is the second appeal in this case. Upon the first trial, the defendant recovered a judgment dismissing the plaintiff’s complaint, which judgment, upon appeal, was reversed by this court and a new trial granted. In the memorandum opinion this court held the defendant, the auctioneer, to be a stakeholder (Merritt v. Archer, 163 App. Div. 648), and that, as such, it should have retained the deposit until it was determined whether the sellers were entitled to it, or whether on the facts disclosed by…