Liberman v. Beck

Appellate Terms of the Supreme Court of New York

Liberman v. Beck

138 N.Y.S. 318

Appellate Terms of the Supreme Court of New York·Decided March 15, 1912·Published

Opinion

STAPLETON, J.

This action was for the recovery of the agreed price of goods sold and delivered. The answer interposed contained a general denial and a special defense, alleging implied breach of warranty and rescission. The complaint of the plaintiff sufficiently stated a cause of action. Plaintiff offered no evidence upon the trial, because the facts stated in the complaint were expressly admitted upon the record.

[1] The defendant entered upon his defense, and the court below rendered its judgment in the following words;

“For defendant, dismissing the complaint without prejudice on defendant’s motion at the close of ease.”

This action constituted a nonsuit. Section 248, Municipal Court Act (chapter 580, Laws of 1902).

Costs were taxed against plaintiff for $15. The plaintiff moved to vacate the judgment and for a new trial under section 254 of the Municipal Court Act, supra. The court denied the motion and the plaintiff appeals from the order.

[2] The complaint having alleged facts constituting a cause of action, which facts were admitted upon the trial by the defendant, it is impossible for us to conceive how the complaint could have been dismissed, except upon the merits, which would have necessarily involved the "determination that a sufficient defense had been proved. The ef'fect of such a dismissal is a determination that, although the plaintiff stated a good cause of action, she may not have judgment upon it, [320]*320and should have costs imposed upon her. Such a determination we deem to be contrary to law.

[3] The other order specified in the notice of appeal has not been returned to this court, and therefore it may not be considered. In view of the determination to be made herein, it would seem unnecessary to consider it, had it been returned. Arker v. Cohen, 136 App. Div. 871, 872, 122 N. Y. Supp. 4. The motion to vacate the judgment and_ to award a new trial should have been granted, and the order denying that relief should be reversed. See Lackner v. American Clothing Co., 112 App. Div. 438, 441, 98 N. Y. Supp. 376.

Order reversed, with $10 costs and disbursements to appellant to abide the event, and motion to vacate the judgment granted, and a new trial ordered for a time to be specified in the order.

GARRETSON and RAPPER, JJ., concur.

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STAPLETON, J.

This action was for the recovery of the agreed price of goods sold and delivered. The answer interposed contained a general denial and a special defense, alleging implied breach of warranty and rescission. The complaint of the plaintiff sufficiently stated a cause of action. Plaintiff offered no evidence upon the trial, because the facts stated in the complaint were expressly admitted upon the record.

[1] The defendant entered upon his defense, and the court below rendered its judgment in the following words;

“For defendant, dismissing the complaint without prejudice on defendant’s motion at the close of ease.”

This action constituted a nonsuit. Section 248, Municipal Court Act (chapter 580, Laws of 1902).

Costs were taxed against plaintiff for $15. The plaintiff moved to vacate the judgment and for a new trial under section 254 of the Municipal Court Act, supra. The court denied the motion and the plaintiff appeals from the order.

[2] The complaint having alleged facts constituting a cause of action, which facts were admitted upon the trial by the defendant, it is impossible for us to conceive how the complaint could have been dismissed, except upon the merits, which would have necessarily involved the "determination that a sufficient defense had been proved. The ef'fect of such a dismissal is a determination that, although the plaintiff stated a good cause of action, she may not have judgment upon it, [320]*320and should have costs imposed upon her. Such a determination we deem to be contrary to law.

[3] The other order specified in the notice of appeal has not been returned to this court, and therefore it may not be considered. In view of the determination to be made herein, it would seem unnecessary to consider it, had it been returned. Arker v. Cohen, 136 App. Div. 871, 872, 122 N. Y. Supp. 4. The motion to vacate the judgment and_ to award a new trial should have been granted, and the order denying that relief should be reversed. See Lackner v. American Clothing Co., 112 App. Div. 438, 441, 98 N. Y. Supp. 376.

Order reversed, with $10 costs and disbursements to appellant to abide the event, and motion to vacate the judgment granted, and a new trial ordered for a time to be specified in the order.

GARRETSON and RAPPER, JJ., concur.

Liberman v. Beck, 138 N.Y.S. 318 (N.Y. Ct. App. 1912).

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