Ephriam v. Kinstler

Appellate Terms of the Supreme Court of New York

Ephriam v. Kinstler

124 Misc. 547, 208 N.Y.S. 450, 1925 N.Y. Misc. LEXIS 673

CourtAppellate Terms of the Supreme Court of New York

DecidedFebruary 12, 1925

StatusPublished

This text of 124 Misc. 547 (Ephriam v. Kinstler) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ephriam v. Kinstler, 124 Misc. 547, 208 N.Y.S. 450, 1925 N.Y. Misc. LEXIS 673 (N.Y. Ct. App. 1925).

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Opinion

Per Curiam:

The learned trial justice rightly decided that there was no showing of an assignment to the plaintiff of the rents past due. We are of the opinion, however, that as that point had not been made upon the trial an opportunity should have been afforded the plaintiff of submitting proof that there was such an assignment. As the plaintiff alleges that such proof is available we are sending the case back for a new trial. The failure to file an exception to the decision was not jurisdictional, but procedural, and we permit an exception to be filed. (Termini v. Huth, 191 App. Div. 218; Lichtbach v. Kelbach, 186 N. Y. Supp. 126.)

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

All concur; present, Bijur, Mullan and Cotillo, JJ.

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Per Curiam:

The learned trial justice rightly decided that there was no showing of an assignment to the plaintiff of the rents past due. We are of the opinion, however, that as that point had not been made upon the trial an opportunity should have been afforded the plaintiff of submitting proof that there was such an assignment. As the plaintiff alleges that such proof is available we are sending the case back for a new trial. The failure to file an exception to the decision was not jurisdictional, but procedural, and we permit an exception to be filed. (Termini v. Huth, 191 App. Div. 218; Lichtbach v. Kelbach, 186 N. Y. Supp. 126.)

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

All concur; present, Bijur, Mullan and Cotillo, JJ.

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Bluebook (online)

124 Misc. 547, 208 N.Y.S. 450, 1925 N.Y. Misc. LEXIS 673, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ephriam-v-kinstler-nyappterm-1925.

Opinion

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