Markowitz v. Kanner

145 N.Y.S. 920

• Court: Appellate Terms of the Supreme Court of New York
• Decided: February 13, 1914
• Status: Published

Opinion

LEHMAN, J.

[1-3] The plaintiff sues both defendants for goods sold and delivered. The summons was served only upon the defendant Sarah Kanner, who failed to appear at the trial. The defendant Joe Kanner did not appear by counsel, but the record shows that he did appear personally at the trial, and testified in his own behalf. The plaintiff’s evidence fails to show any cause of action against the _de-' fendant Sarah Kanner, but it does show a good cause of action against the defendant Joe Kanner. The trial justice at the close of the case entered judgment as follows: “Judgment for the plaintiff after trial for $28.” This judgment is erroneous in form, since it does not state against which defendant it is found. Inasmuch, however, as there is absolutely no evidence against the defendant Sarah Kanner, no judgment against her was possible. On the other hand, the court had jurisdiction over Joe Kanner by reason of his appearance, and there is ample evidence to sustain a judgment against him.

Judgment should therefore be modified by providing that it is rendered only against the defendant Joe Kanner, and, as modified, affirmed, without costs to either party. All concur.