Coletta v. Stevens

8 A.D.2d 683, 184 N.Y.S.2d 442, 1959 N.Y. App. Div. LEXIS 9280

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 8, 1959
• Status: Published

Opinion

Judgment in favor of plaintiff Coletta against defendant Stevens reversed on the law and facts, with costs to defendant Stevens and complaint dismissed, with costs. Memorandum: The action was based upon an alleged eviction, actual or constructive. No proof of either was produced and the plaintiff failed to make out a cause of action as a matter of law. Hollbros, Inc., is included in the action as a third-party defendant only and not as a defendant in relation to plaintiff’s direct claim. Although Stevens has undertaken to appeal from the judgment of no cause of action on his third-party claim against Hollbros, Inc., no such judgment appears in the record and we cannot pass upon it. However, in view of our decision on the main claim of Coletta v. Stevens, that question has become academic. All concur. (Appeal by defendant Stevens from a judgment of Steuben County Court for plaintiff against said defendant; appeal by defendant Stevens as third-party plaintiff from the judgment of the said court for no cause of action as to the third-party defendant Hollbros, Inc.;' appeal by defendant Stevens from an order denying motion by said defendant and third-party plaintiff for a new trial, in an action for breach of terms of a lease.) Present — MeCurn, P. J., Kimball, Williams, Goldman and Halpem, JJ.