Hofstetter v. Goldenberg

132 Misc. 772, 230 N.Y.S. 353, 1928 N.Y. Misc. LEXIS 985

Opinion

Per Curiam.

Among a number of prejudicial errors duly excepted to by appellant’s counsel committed upon the trial are the following, namely: (1) The admission in evidence without proper authentication of the so-called minutes taken in an action between these parties in the Municipal Court; (2) the allowance upon the trial of an inadequately stated amendment to the complaint after plaintiff’s case was almost concluded, ostensibly on the ground that such amendment would conform the complaint to the proof, whereas it controverted all adduced evidence; (3) the holding as a matter of law on insufficient evidence that the judgment between these parties in the Municipal Court was res adjudicata that defendant, appellant, was a principal and bound as such on the contract referred to in the complaint, and (4) the holding as matter of law that in the making of such contract the defendant, appellant, acted as principal and not exclusively as the duly, authorized agent of the A. & A. Amusement Corporation. For these errors and others the judgment is reversed and a new trial ordered, with costs to appellant to abide the event.

Levy and Crain, JJ., concur; Bijur, J., concurs in result.