Kalmayer v. Twietmayer

Appellate Terms of the Supreme Court of New York

Kalmayer v. Twietmayer

157 Misc. 418, 283 N.Y.S. 856, 1935 N.Y. Misc. LEXIS 1597

CourtAppellate Terms of the Supreme Court of New York

DecidedNovember 14, 1935

StatusPublished

This text of 157 Misc. 418 (Kalmayer v. Twietmayer) 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

Kalmayer v. Twietmayer, 157 Misc. 418, 283 N.Y.S. 856, 1935 N.Y. Misc. LEXIS 1597 (N.Y. Ct. App. 1935).

Pincite

Opinion

Per Curiam.

It was error for the trial court to deny plaintiff’s motion for an adjournment of the case on his plea of surprise when the defendant for the first time at the trial raised the issue of usury. However, the record establishes that plaintiff was not a holder in due course and for value and that the action was prematurely brought. The plaintiff, therefore, was not entitled to recover.

Judgment modified by providing that the dismissal of the complaint is without prejudice and as modified affirmed, with ten dollars costs to appellant.

All concur. Present — Lydon, Callahan and Shientag, JJ.

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Per Curiam.

It was error for the trial court to deny plaintiff’s motion for an adjournment of the case on his plea of surprise when the defendant for the first time at the trial raised the issue of usury. However, the record establishes that plaintiff was not a holder in due course and for value and that the action was prematurely brought. The plaintiff, therefore, was not entitled to recover.

Judgment modified by providing that the dismissal of the complaint is without prejudice and as modified affirmed, with ten dollars costs to appellant.

All concur. Present — Lydon, Callahan and Shientag, JJ.

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Bluebook (online)

157 Misc. 418, 283 N.Y.S. 856, 1935 N.Y. Misc. LEXIS 1597, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kalmayer-v-twietmayer-nyappterm-1935.