Groshut v. Kinetophote Corp.

Appellate Terms of the Supreme Court of New York

Groshut v. Kinetophote Corp.

154 N.Y.S. 126

CourtAppellate Terms of the Supreme Court of New York

DecidedJune 23, 1915

StatusPublished

This text of 154 N.Y.S. 126 (Groshut v. Kinetophote Corp.) 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

Groshut v. Kinetophote Corp., 154 N.Y.S. 126 (N.Y. Ct. App. 1915).

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Opinion

BIJUR, J.

The complaint sets forth two causes of action for an aggregate of some $900. The answer, after certain denials, sets up an alleged counterclaim for $800. When - the case was reached for trial, plaintiff, who had not replied to the counterclaim, urged that it be disregarded or dismissed, on the ground that it did not state a cause of action, and defendant, for the purposes of the motion, conceded the plaintiff’s cause of action. The learned judge below, being of opinion that the counterclaim was well pleaded, gave judgment for the plaintiff for the difference, and plaintiff appeals from this judgment.

The counterclaim, so far as material, is as follows:

“That prior to the times alleged in the complaint herein plaintiff was indebted to one Lederer in the sum of $800 for services rendered by the said Lederer for the plaintiff in connection with certain motion pictures, * * * [127]*127no part of which said sum has since been paid, and the whole amount thereof is justly due and owing by the plaintiff herein,” and that Lederer had assigned his claim to defendant.

The counterclaim states merely the conclusions of the pleader, to the effect that plaintiff was indebted to Lederer for services rendered by the latter for plaintiff. Whether he was so indebted was a question of fact or law, or both, to be determined on presentation of the facts upon which the conclusion is based. It is not, even in the most liberal construction of the pleading, even intimated that plaintiff requested the rendition of the services by Lederer, or accepted the services, nor even that he was aware of their rendition. Although the citation of authorities on this proposition is superfluous, Tate v. American Woolen Co., 114 App. Div. 106, 99 N. Y. Supp. 678, Sampson v. Grand Rapids Co., 55 App. Div. 163, 66 N. Y. Supp. 815, and Nealis v. Marks, 96 N. Y. Supp. 740, may be referred to.

Judgment reversed, and a new trial granted, with costs to appellant to abide the event, with leave, however, to defendant to serve an amended answer, if he be so advised, within six days after service of a copy of the order entered hereon in the City Court and payment to plaintiff of costs of the action to date. All concur.

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BIJUR, J.

The complaint sets forth two causes of action for an aggregate of some $900. The answer, after certain denials, sets up an alleged counterclaim for $800. When - the case was reached for trial, plaintiff, who had not replied to the counterclaim, urged that it be disregarded or dismissed, on the ground that it did not state a cause of action, and defendant, for the purposes of the motion, conceded the plaintiff’s cause of action. The learned judge below, being of opinion that the counterclaim was well pleaded, gave judgment for the plaintiff for the difference, and plaintiff appeals from this judgment.

The counterclaim, so far as material, is as follows:

“That prior to the times alleged in the complaint herein plaintiff was indebted to one Lederer in the sum of $800 for services rendered by the said Lederer for the plaintiff in connection with certain motion pictures, * * * [127]*127no part of which said sum has since been paid, and the whole amount thereof is justly due and owing by the plaintiff herein,” and that Lederer had assigned his claim to defendant.

The counterclaim states merely the conclusions of the pleader, to the effect that plaintiff was indebted to Lederer for services rendered by the latter for plaintiff. Whether he was so indebted was a question of fact or law, or both, to be determined on presentation of the facts upon which the conclusion is based. It is not, even in the most liberal construction of the pleading, even intimated that plaintiff requested the rendition of the services by Lederer, or accepted the services, nor even that he was aware of their rendition. Although the citation of authorities on this proposition is superfluous, Tate v. American Woolen Co., 114 App. Div. 106, 99 N. Y. Supp. 678, Sampson v. Grand Rapids Co., 55 App. Div. 163, 66 N. Y. Supp. 815, and Nealis v. Marks, 96 N. Y. Supp. 740, may be referred to.

Judgment reversed, and a new trial granted, with costs to appellant to abide the event, with leave, however, to defendant to serve an amended answer, if he be so advised, within six days after service of a copy of the order entered hereon in the City Court and payment to plaintiff of costs of the action to date. All concur.

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154 N.Y.S. 126, Counsel Stack Legal Research, https://law.counselstack.com/opinion/groshut-v-kinetophote-corp-nyappterm-1915.

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