Gittens v. Elliot

130 N.Y.S. 227

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 29, 1911
• Status: Published

Opinion

PER CURIAM.

Plaintiff appeals from a judgment rendered in his own favor, upon the ground that the court below refused to insert in the judgment a clause authorizing the arrest and imprisonment of the defendant.

, [1,2] An examination of the testimony taken upon the trial shows that there is no proof sufficient to authorize the entry of any judgment whatever. The most that can be spelled out of the obscure record is that the plaintiff gave the defendant the sum of $65 with which to purchase a restaurant business for the plaintiff, that the defendant gave the money to the man of whom he did or expected to purchase the restaurant, and that at the time the plaintiff asked for the return of the money the vendor could not be found by the defendant. This testimony shows neither conversion nor breach of contract.

If the defendant had appeared in the lower court, and appealed, the judgment would have been reversed. The defendant, however, is in default in appearing in either court, and the judgment must be áffirmed, without costs.