Boardwalk Stores Corp. v. Moses

269 A.D. 911, 1945 N.Y. App. Div. LEXIS 4424

Opinion

On the court’s own motion the decision of this court handed down July 2, 1945, is amended to read as follows: Judgment dismissing the complaint on the merits at the close of plaintiff’s case, except as to damages, reversed on the law and a new trial granted, with costs to abide the event. The appeal from the order granting defendants’ motion to dismiss the complaint is dismissed, without costs. No such order is printed in the record. Opinion by Lewis, J. Johnston and Aldrich, JJ., concur; Close, P. J., and Adel, J., concur as to dismissal of the appeal from the order, but as to the judgment they dissent and, on the ground that plaintiff failed to establish the cause of action alleged in the complaint, vote to affirm. Opinion amended accordingly. [See ante, p. 506.]