Merritt & Chapman Derrick & Wrecking Co. v. Koronsky

113 N.Y.S. 744

• Court: Appellate Terms of the Supreme Court of New York
• Decided: December 16, 1908
• Status: Published

Opinion

GIEGERICH, J.

The appeal from the judgment must be dismissed, as such an appeal will not lie. The minutes taken upon the inquest form part of the record, and may therefore be examined with a view to ascertaining whether or not a cause of action has been shown to exist against the defendants, as the failure to prove a cause of action is a most potent reason why a judgment should be set aside and a default opened. An examination of the testimony given on the part of the plaintiff fails to establish any claim against these defendants. The action was clearly brought against them either as' joint debtors or copartners, and the proof given does not show that they were either. The evidence also fails to show that the plaintiff was ever employed to perform the work sued for by the defendants or either of them, or by any one having authority from defendants to so employ the plaintiff. The order must therefore be reversed.

Appeal from judgment dismissed, with $10 costs, and the order reversed, the default of the defendants in the lower court opened, and judgment vacated upon such terms as may be properly imposed by the lower court. Costs of this appeal to the appellants to abide the event of a new trial. All concur.