Mitterwallner v. Supreme Lodge of Knights & Ladies of Golden Star

Appellate Terms of the Supreme Court of New York

Mitterwallner v. Supreme Lodge of Knights & Ladies of Golden Star

90 N.Y.S. 1076

Appellate Terms of the Supreme Court of New York·Decided December 7, 1904·Published

Opinion

FREEDMAN, P. J.

Upon the trial now under review, which is the third trial of this action, the defendant offered no evidence, and the motion for a dismissal of the complaint was based upon two specific grounds, viz.: That the plaintiff had not established the cause of action alleged in the complaint; and, secondly, that the defense set up in the answer of accord and satisfaction had been clearly established by the admissions of the plaintiff upon the witness stand. The motion was denied, and defendant rested, and made no request for the submission of any question to the jury when plaintiff’s motion for the direction of a verdict was made and granted." The case shows that plaintiff’s proof sufficiently established a cause of action for the amount for which the verdict wás directed, and that it did not establish the defense of accord [1077]*1077and satisfaction. The amendment of plaintiff’s surname by one letter was properly allowed. None of defendant’s exceptions presents reversible error.

The judgment and order should be affirmed, with costs. All concur.

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FREEDMAN, P. J.

Upon the trial now under review, which is the third trial of this action, the defendant offered no evidence, and the motion for a dismissal of the complaint was based upon two specific grounds, viz.: That the plaintiff had not established the cause of action alleged in the complaint; and, secondly, that the defense set up in the answer of accord and satisfaction had been clearly established by the admissions of the plaintiff upon the witness stand. The motion was denied, and defendant rested, and made no request for the submission of any question to the jury when plaintiff’s motion for the direction of a verdict was made and granted." The case shows that plaintiff’s proof sufficiently established a cause of action for the amount for which the verdict wás directed, and that it did not establish the defense of accord [1077]*1077and satisfaction. The amendment of plaintiff’s surname by one letter was properly allowed. None of defendant’s exceptions presents reversible error.

The judgment and order should be affirmed, with costs. All concur.

Mitterwallner v. Supreme Lodge of Knights & Ladies of Golden Star, 90 N.Y.S. 1076 (N.Y. Ct. App. 1904).

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