Johnson v. Thorn

Appellate Terms of the Supreme Court of New York

Johnson v. Thorn

27 Misc. 771, 57 N.Y.S. 762

CourtAppellate Terms of the Supreme Court of New York

DecidedApril 15, 1899

StatusPublished

This text of 27 Misc. 771 (Johnson v. Thorn) 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

Johnson v. Thorn, 27 Misc. 771, 57 N.Y.S. 762 (N.Y. Ct. App. 1899).

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Opinion

Freedman, P. J.

This action was brought to foreclose a mechanic’s lien, filed against the property of the defendant Julja Thom, who paid the amount claimed by the lien into court, and, at the opening of the trial, the complaint was dismissed as to .her,

' The defendants Henry. H. and Nathan Yought, doing business as “ Yought Brothers,” and the defendant Jorgensen filed separate answers.

At the close of the plaintiff’s case, each of the defendants made a motion to dismiss the complaint of the plaintiff, which motion •was granted.

In süch'a case the testimony of t¡he plaintiff . and' his witnesses must be taken as true, and must be construed in the light most favorable to the plaintiff. Schiller v. Dry Dock, E. B’y & Battery R. R. Co., 26 Misc. Rep. 392. While the offer of "the defendants “ Yought Bros.” to pay the sum of $30 and costs into epurt should not be regarded as an admission of liability oh their part, yet there was testimony given on the part of plaintiff and his witnesses from [772]*772which, standing, as it did, unexplained. and uncontradicted, the ■court helow might have found that the plaintiff performed some (so called) extra work, for which Vought Brothers promised and agreed to pay.

The.answer of the defendant Jorgensen also expressly admits an indebtedness from him to the plaintiff of at least the sum of $10, and he (Jorgensen) is bound by that admission.. Schreyer v. Mayor, 39 N. Y. Super. Ct. (7 J. & S.) 1; Paige v. Willet, 38 N. Y. 28. The judgment, must, therefore, be reversed.

MacBean and Beventritt, JJ., concur.

Judgment reversed, new trial ordered, with costs to appellant, to abide event.

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Freedman, P. J.

This action was brought to foreclose a mechanic’s lien, filed against the property of the defendant Julja Thom, who paid the amount claimed by the lien into court, and, at the opening of the trial, the complaint was dismissed as to .her,

' The defendants Henry. H. and Nathan Yought, doing business as “ Yought Brothers,” and the defendant Jorgensen filed separate answers.

At the close of the plaintiff’s case, each of the defendants made a motion to dismiss the complaint of the plaintiff, which motion •was granted.

In süch'a case the testimony of t¡he plaintiff . and' his witnesses must be taken as true, and must be construed in the light most favorable to the plaintiff. Schiller v. Dry Dock, E. B’y & Battery R. R. Co., 26 Misc. Rep. 392. While the offer of "the defendants “ Yought Bros.” to pay the sum of $30 and costs into epurt should not be regarded as an admission of liability oh their part, yet there was testimony given on the part of plaintiff and his witnesses from [772]*772which, standing, as it did, unexplained. and uncontradicted, the ■court helow might have found that the plaintiff performed some (so called) extra work, for which Vought Brothers promised and agreed to pay.

The.answer of the defendant Jorgensen also expressly admits an indebtedness from him to the plaintiff of at least the sum of $10, and he (Jorgensen) is bound by that admission.. Schreyer v. Mayor, 39 N. Y. Super. Ct. (7 J. & S.) 1; Paige v. Willet, 38 N. Y. 28. The judgment, must, therefore, be reversed.

MacBean and Beventritt, JJ., concur.

Judgment reversed, new trial ordered, with costs to appellant, to abide event.

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Bluebook (online)

27 Misc. 771, 57 N.Y.S. 762, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-thorn-nyappterm-1899.

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