La Barbera v. Ciotta

277 A.D.2d 798

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 29, 1950
• Status: Published

Opinion

In an action to recover damages for breach of a contract for the purchase and sale of a dress contracting business, judgment in favor of respondent, entered upon the verdict of a jury, affirmed, with costs. The case was tried upon the theory that section 112-g of the Civil Practice Act applied to the cause of action pleaded in the complaint, and the trial court charged the jury that the plaintiff, if successful, could recover the entire consideration which she had paid for the purchase of the business. There was no exception to this charge and, after the jury had returned with a verdict in favor of the plaintiff, appellants’ attorney moved that the verdict be made conditional, in accordance with section 112-g of the Civil Practice Act. Under the circumstances disclosed by the record, the charge with respect to the measure of damages became the law of the case, and appellants are in no position to complain as to the form of the judgment. (Cf. McCabe v. Cohen, 268 App. Div. 1064, affd. 294 N. Y. 522; Leonard v. Home Owners’ Loan Corp., 297 N. Y. 103; Matter of N. Y., L. & W. B. B. Co., 98 N. Y. 447; Croissant V. Doscher, 244 App. Div. 736.) Nolan, P. J., Carswell, Sneed and MaeCrate, JJ., concur; Wenzel, J., dissents and votes to reverse the judgment and to dismiss the complaint, with the following memorandum: The defendants’ motion to dismiss at the close of plaintiff’s case should have been granted for failure to establish a prima facie ease.