Anderson v. Rosenberg

Appellate Division of the Supreme Court of New York

Anderson v. Rosenberg

121 A.D. 424, 106 N.Y.S. 171, 1907 N.Y. App. Div. LEXIS 1786

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 11, 1907

StatusPublished

This text of 121 A.D. 424 (Anderson v. Rosenberg) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Anderson v. Rosenberg, 121 A.D. 424, 106 N.Y.S. 171, 1907 N.Y. App. Div. LEXIS 1786 (N.Y. Ct. App. 1907).

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Opinion

Hooker, J.:

The complaint alleged a promise of the defendant to pay to the plaintiff $1,000, or so much thereof as the trust company paid for assessments, as soon as the trust company made the payment. The action was commenced on the 4th day of December, 1905, by the service of the summons on the .defendant; the payment by the trust company of the assessments was not made until the 23d day of December, 1905. The nonsuit was, therefore, properly granted for the reason that the action was prematurely brought. The judgment, however, provides that the complaint should be dismissed “ upon the merits.” Because of. this error, the judgment must be modified by striking out the words “ upon the merits,”' and as thus modified affirmed, without costs.

Jenks, Gaynor, Rich and Miller, JJ., concurred.

Judgment modified by striking out the words “ upon the merits,” and as thus modified affirmed, without costs.

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Hooker, J.:

The complaint alleged a promise of the defendant to pay to the plaintiff $1,000, or so much thereof as the trust company paid for assessments, as soon as the trust company made the payment. The action was commenced on the 4th day of December, 1905, by the service of the summons on the .defendant; the payment by the trust company of the assessments was not made until the 23d day of December, 1905. The nonsuit was, therefore, properly granted for the reason that the action was prematurely brought. The judgment, however, provides that the complaint should be dismissed “ upon the merits.” Because of. this error, the judgment must be modified by striking out the words “ upon the merits,”' and as thus modified affirmed, without costs.

Jenks, Gaynor, Rich and Miller, JJ., concurred.

Judgment modified by striking out the words “ upon the merits,” and as thus modified affirmed, without costs.

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Bluebook (online)

121 A.D. 424, 106 N.Y.S. 171, 1907 N.Y. App. Div. LEXIS 1786, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anderson-v-rosenberg-nyappdiv-1907.