Meinhardt v. Excelsior Brewing Co.

Appellate Division of the Supreme Court of New York

Meinhardt v. Excelsior Brewing Co.

81 N.Y.S. 1042

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 1, 1903

StatusPublished

This text of 81 N.Y.S. 1042 (Meinhardt v. Excelsior Brewing Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Meinhardt v. Excelsior Brewing Co., 81 N.Y.S. 1042 (N.Y. Ct. App. 1903).

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Opinion

JENKS, J.

The oral pleadings are complaint for money had and received, and answer of general denial. There was no amendment of the answer. At the close of the case the defendant moved for' [1043]*1043a dismissal of the complaint on the ground that it appeared that the ownership of the fund was equally in the plaintiff and a third party. The court gave judgment dismissing the complaint on the merits. The defendant could have pleaded that defect in abatement. Laws 1902, p. 1496, c. 580. As it did not, I think that it waived the point. Section 20, Municipal Court Act (section 449, Code Civ. Proc.); Carr v. Security Insurance Company, 109 N. Y. 504, 511, 17 N. E. 369. I think that the exceptions to the rulings that admitted testimony to establish the fact of part ownership in a third person were well taken. Smith v. Hall, 67 N. Y. 48; Spooner v. D., L & W. R. Co., 115 N. Y. 22, 21 N. E. 696; Zapp v. Miller, 109 N. Y. 51, 15 N. E. 889; Stamp v. Franklin, 144 N. Y. 607, 39 N. E. 634.

The judgment should be reversed, and a new trial ordered. All concur.

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JENKS, J.

The oral pleadings are complaint for money had and received, and answer of general denial. There was no amendment of the answer. At the close of the case the defendant moved for' [1043]*1043a dismissal of the complaint on the ground that it appeared that the ownership of the fund was equally in the plaintiff and a third party. The court gave judgment dismissing the complaint on the merits. The defendant could have pleaded that defect in abatement. Laws 1902, p. 1496, c. 580. As it did not, I think that it waived the point. Section 20, Municipal Court Act (section 449, Code Civ. Proc.); Carr v. Security Insurance Company, 109 N. Y. 504, 511, 17 N. E. 369. I think that the exceptions to the rulings that admitted testimony to establish the fact of part ownership in a third person were well taken. Smith v. Hall, 67 N. Y. 48; Spooner v. D., L & W. R. Co., 115 N. Y. 22, 21 N. E. 696; Zapp v. Miller, 109 N. Y. 51, 15 N. E. 889; Stamp v. Franklin, 144 N. Y. 607, 39 N. E. 634.

The judgment should be reversed, and a new trial ordered. All concur.

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81 N.Y.S. 1042, Counsel Stack Legal Research, https://law.counselstack.com/opinion/meinhardt-v-excelsior-brewing-co-nyappdiv-1903.

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