Opinion
May, 1912.
Charles J. Hardy, for appellant.
Lawrence T. Gresser, for respondent.
As to the appeal from the order, there is nothing to show why it was refused. Defendant made out a prima facie case for a commission. The order recites the motion and affidavits and that plaintiff's attorney was heard in opposition and then denies the motion — no ground stated and no affidavits in opposition.
Respondent says no appeal was taken from the order, but he is wrong. Notice of appeal with his admission of service is returned. The motion for commission was made in October — the case was not tried until December. The evidence sought was material. One of the issues in dispute was the weight of the material delivered. While it is true the plaintiff claimed that the test was the weight when loaded in Long Island City, and these witnesses unloaded the freight at the point of delivery, it would seem that in any event the evidence was admissible. But no reason is given for denying the motion to which defendant appears to have been entitled under Municipal Court Act, sections 205-207.
Defendant claimed under the printed order blank that it was the weight at the mill which governed. Order says payment to be made by mill returns. Plaintiff claimed that the written part of the order providing for delivery on board at Long Island City governed. Without passing on this question we think the evidence was admissible.
Order denying motion for commission reversed, with ten dollars costs to appellant.
Present: KELLY, JAYCOX and CLARK, JJ.
Order reversed, with ten dollars costs to appellant.