Kauders v. Gorki

Appellate Terms of the Supreme Court of New York

Kauders v. Gorki

8 Misc. 2d 948, 160 N.Y.S.2d 975, 1957 N.Y. Misc. LEXIS 3540

CourtAppellate Terms of the Supreme Court of New York

DecidedFebruary 7, 1957

StatusPublished

This text of 8 Misc. 2d 948 (Kauders v. Gorki) 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

Kauders v. Gorki, 8 Misc. 2d 948, 160 N.Y.S.2d 975, 1957 N.Y. Misc. LEXIS 3540 (N.Y. Ct. App. 1957).

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Opinion

Per Curiam.

The opposing contentions of the parties created issues of fact which should have been presented to the jury for determination under an appropriate charge. If, as plaintiff indicates, the instruction to find for plaintiff on his commissions on sales was a directed verdict it was error for the court to so direct since plaintiff did not make the request (Billig v. Don Allen Midtown Chevrolet, 110 N. Y. S. 2d 162). Moreover the burden of proving damages by competent evidence is upon plaintiff and the jury should have been instructed accordingly. The verdict of the jury was defective in that it failed to assess the amount of damages (Civ. Prac. Act, § 460).

The judgment should be reversed and a new trial ordered, with $30 costs to appellants.

Hecht, Aurelio and Tilzer, JJ., concur.

Judgment reversed, etc.

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Per Curiam.

The opposing contentions of the parties created issues of fact which should have been presented to the jury for determination under an appropriate charge. If, as plaintiff indicates, the instruction to find for plaintiff on his commissions on sales was a directed verdict it was error for the court to so direct since plaintiff did not make the request (Billig v. Don Allen Midtown Chevrolet, 110 N. Y. S. 2d 162). Moreover the burden of proving damages by competent evidence is upon plaintiff and the jury should have been instructed accordingly. The verdict of the jury was defective in that it failed to assess the amount of damages (Civ. Prac. Act, § 460).

The judgment should be reversed and a new trial ordered, with $30 costs to appellants.

Hecht, Aurelio and Tilzer, JJ., concur.

Judgment reversed, etc.

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Bluebook (online)

8 Misc. 2d 948, 160 N.Y.S.2d 975, 1957 N.Y. Misc. LEXIS 3540, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kauders-v-gorki-nyappterm-1957.