#### Bettina Hammersen, Appellant, *v.*J. Bernard Schleicher, Respondent.

Appeal from a judgment in favor of defendant for costs, rendered in the Municipal Court, Finth District, borough of Manhattan.

Bernard J. Isecke, for appellant.

Arthur W. Birkins, for respondent.

Freedman, P. J.

This action was brought to recover the sum of $237.50, as a balance claimed to be due on an alleged contract for the purchase price of a liquor business, stock, fixtures, good-will and license in a saloon, at Madison avenue, in Few York city. The plaintiff claimed that the defendant agreed to pay for such business, stock, etc., the sum of $500.

The answer was a general denial. Fo objection or exception to the introduction of any evidence was taken during the trial, and the case was submitted to the court and a judgment rendered in favor of the defendant, for costs. We are asked to reverse this judgment, upon the ground that it is against the weight of evidence. The testimony discloses the following state of facts. The husband of the plaintiff, August W. Hammersen, conducted a saloon business for his wife, the plaintiff, and made the sale to the defendant. *812He testifies that on the 25th clay of March, 1898, He had a conversation with the defendant, in which the defendant agreed to purchase the property in question and to pay the sum of $500 therefor,, subject to a chattel mortgage upon a part of the property held by the Lion Brewing Co., provided he (defendant) could get a lease of the premises. That, subsequently, through the efforts of' the witness, the defendant obtained a lease of the premises for the-term of five years, and that on April 2, 1898, the state and United States license for the sale of liquor, at the premises, together with the keys to the building, were handed to the defendant,- and he-was introduced to the customers of the saloon and took possession. This witness also testifies that a few days after, he met the defendant at his (defendant’s) residence, and it was then agreed between them that the sum of $165, previously loaned Hammersen by defendant, should be deducted from the purchase price ($500), leaving a balance due of $335, upon which balance payments were-subsequently paid, to apply from time to time, until there remained the sum of $237.50.

One Frank Kurzeya was called as a witness for the plaintiff, who-testified that he was present at the time of the conversation on March 25th, between Hammersen and defendant, and heard defendant say to Hammersen, *“*I will give you $500. Go down- to the landlord and see if I get the lease. The lease is worth $2,000.”' August Hammersen, a son of the plaintiff, also testifies to the same-state of facts. The testimony of the defendant stands unsupported in any way, and is to the effect, that sometime in January, preceding the conversation testified to as having occurred in March, he loaned Hammersen the sum of $165, and after calling on him several times for payment, finally asked him (Hammersen), “ "What, do you intend to do ? ” That Hammersen then suggested to the witness to buy the place, stating that there was .$700 worth of’ property there, evidently meaning over and above that covered by the mortgage aforesaid, of which mortgage it appears defendant had knowledge. That defendant replied, “ In that case I will take-it.” That, on April 2d, following, he got the lease, paid the rent and took the keys to the building. That a few days after he left the keys with Hammersen, who, the defendant alleges, thereupon took out everything not covered by the mortgage. It also appears by his testimony that after he (defendant) ascertained that Hammersen had taken the property, he (defendant) went to the brewing company, and directed them to take away the property covered by the mortgage, and said that he (defendant) would “ put in new again.”

*813The defendant does not dispute that the lease was obtained for him by Hannnersen, and his testimony as to the taking away of the property is denied by the senior Hannnersen and by Ms son, the son testifying that the goods in the store were taken and removed to the place of business kept by defendant, and one Salvatore Mastrak testifies that he was at the saloon and saw the wagon of defendant there into wMch the property was being loaded, and that the witness assisted in the loading.

The judgment is clearly against the weight of evidence. We think that the evidence, the acts of the parties and all the surrounding circumstances so unmistakably indicate the merit of the plaintiff’s claim, that we must hold this to be one of those exceptional instances, in which the justice of the case requires a reversal on the facts. § 3063, Code Civ. Pro.

Judgment reversed, new trial ordered, with costs to the appellant, to abide the event.

MacLean and Leventritt, JJ., concur.

Judgment reversed, new trial ordered, with costs to appellant to abide event. .