Miller v. Daub

Appellate Terms of the Supreme Court of New York

Miller v. Daub

134 Misc. 2d 613, 513 N.Y.S.2d 583, 1987 N.Y. Misc. LEXIS 2078

CourtAppellate Terms of the Supreme Court of New York

DecidedJanuary 20, 1987

StatusPublished

This text of 134 Misc. 2d 613 (Miller v. Daub) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Miller v. Daub, 134 Misc. 2d 613, 513 N.Y.S.2d 583, 1987 N.Y. Misc. LEXIS 2078 (N.Y. Ct. App. 1987).

Pincite

Opinion

OPINION OF THE COURT

Per Curiam.

Order entered May 31, 1985 and judgment entered June 7, 1985 modified by granting judgment in favor of appellant [614]*614Daub against plaintiffs on the first counterclaim in the sum of $2,500; as modified, order and judgment affirmed, with $25 costs to the appellant.

Based upon defendant Daub’s exhibit C and the testimony received at trial, defendant should have been awarded judgment on the first counterclaim. As to the main cause, we think the court should have admitted and considered the deposition testimony of the absent nonparty witness Padrusch. It appears from the record that the witness’ attendance was unable to be procured despite diligent efforts by plaintiffs as well as by the trial court (CPLR 3117 [a] [3] [iv]). Nonetheless, even after allowing for this evidence, we are in agreement with the determination below that plaintiffs’ case was not made by a preponderance of the evidence. Accordingly, so much of the order and judgment as dismissed the complaint is affirmed.

Hughes, P. J., Riccobono and Sandifer, JJ., concur.

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OPINION OF THE COURT

Per Curiam.

Order entered May 31, 1985 and judgment entered June 7, 1985 modified by granting judgment in favor of appellant [614]*614Daub against plaintiffs on the first counterclaim in the sum of $2,500; as modified, order and judgment affirmed, with $25 costs to the appellant.

Based upon defendant Daub’s exhibit C and the testimony received at trial, defendant should have been awarded judgment on the first counterclaim. As to the main cause, we think the court should have admitted and considered the deposition testimony of the absent nonparty witness Padrusch. It appears from the record that the witness’ attendance was unable to be procured despite diligent efforts by plaintiffs as well as by the trial court (CPLR 3117 [a] [3] [iv]). Nonetheless, even after allowing for this evidence, we are in agreement with the determination below that plaintiffs’ case was not made by a preponderance of the evidence. Accordingly, so much of the order and judgment as dismissed the complaint is affirmed.

Hughes, P. J., Riccobono and Sandifer, JJ., concur.

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Bluebook (online)

134 Misc. 2d 613, 513 N.Y.S.2d 583, 1987 N.Y. Misc. LEXIS 2078, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-daub-nyappterm-1987.