Diamond v. Diamond

Appellate Division of the Supreme Court of New York

Diamond v. Diamond

259 A.D. 690, 20 N.Y.S.2d 524, 1940 N.Y. App. Div. LEXIS 6241

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

DecidedJune 7, 1940

StatusPublished

This text of 259 A.D. 690 (Diamond v. Diamond) 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

Diamond v. Diamond, 259 A.D. 690, 20 N.Y.S.2d 524, 1940 N.Y. App. Div. LEXIS 6241 (N.Y. Ct. App. 1940).

Pincite

Opinion

Per Curiam.

The credibility of the evidence offered by the plaintiff should not have been determined by the court on the defandant’s motion to dismiss the complaint, the defendant not having rested at the conclusion of the plaintiff’s case. The only question then presented was whether a prima facie cause of action was established by the plaintiff’s proof. Upon the present record the plaintiff established prima facie a cause of action and, accordingly, the complaint should not have been dismissed.

The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.

Present — Martin, P. J., O’Malley, Townley, Unwermyer and Dore, JJ.

Judgment unanimously reversed and a new trial ordered, with costs to the appellant to abide the event,

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Per Curiam.

The credibility of the evidence offered by the plaintiff should not have been determined by the court on the defandant’s motion to dismiss the complaint, the defendant not having rested at the conclusion of the plaintiff’s case. The only question then presented was whether a prima facie cause of action was established by the plaintiff’s proof. Upon the present record the plaintiff established prima facie a cause of action and, accordingly, the complaint should not have been dismissed.

The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.

Present — Martin, P. J., O’Malley, Townley, Unwermyer and Dore, JJ.

Judgment unanimously reversed and a new trial ordered, with costs to the appellant to abide the event,

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Bluebook (online)

259 A.D. 690, 20 N.Y.S.2d 524, 1940 N.Y. App. Div. LEXIS 6241, Counsel Stack Legal Research, https://law.counselstack.com/opinion/diamond-v-diamond-nyappdiv-1940.