Muller v. Bendit

Appellate Terms of the Supreme Court of New York

Muller v. Bendit

90 N.Y.S. 433

CourtAppellate Terms of the Supreme Court of New York

DecidedNovember 10, 1904

StatusPublished

This text of 90 N.Y.S. 433 (Muller v. Bendit) 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

Muller v. Bendit, 90 N.Y.S. 433 (N.Y. Ct. App. 1904).

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Opinion

BISCHOFF, J.

To the plaintiffs’ cause of action upon the defendant’s check to their order the defendant, among other things, pleaded a former recovery in an action in the same court, wherein one John J. Fox was plaintiff and the parties to this action were severally defendants. After receiving in evidence an alleged judgment roll of such former action, the trial court, deeming the defense established thereby, dismissed the complaint, to which ruling the plaintiffs’ counsel duly-excepted.

[434]*434The judgment roll does not appear in the case on this appeal. Obviously, without the judgment roll of the former action the trial court’s ruling for dismissal of the complaint in this is without support, and the judgment appealed from must be reversed. The exception to the ruling was notice to the defendant of the plaintiffs’ claim of error, and it was thereupon incumbent upon him to add the judgment roll to the case on appeal by proper amendment. Halpin v. Phenix Ins. Co., 118 N. Y. 165, 23 N. E. 482; Rosenstein v. Fox, 150 N. Y. 354, 44 N. E. 1027.

Judgment reversed and new trial ordered, with costs to the appellants to abide the event. All concur.'

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BISCHOFF, J.

To the plaintiffs’ cause of action upon the defendant’s check to their order the defendant, among other things, pleaded a former recovery in an action in the same court, wherein one John J. Fox was plaintiff and the parties to this action were severally defendants. After receiving in evidence an alleged judgment roll of such former action, the trial court, deeming the defense established thereby, dismissed the complaint, to which ruling the plaintiffs’ counsel duly-excepted.

[434]*434The judgment roll does not appear in the case on this appeal. Obviously, without the judgment roll of the former action the trial court’s ruling for dismissal of the complaint in this is without support, and the judgment appealed from must be reversed. The exception to the ruling was notice to the defendant of the plaintiffs’ claim of error, and it was thereupon incumbent upon him to add the judgment roll to the case on appeal by proper amendment. Halpin v. Phenix Ins. Co., 118 N. Y. 165, 23 N. E. 482; Rosenstein v. Fox, 150 N. Y. 354, 44 N. E. 1027.

Judgment reversed and new trial ordered, with costs to the appellants to abide the event. All concur.'

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Bluebook (online)

90 N.Y.S. 433, Counsel Stack Legal Research, https://law.counselstack.com/opinion/muller-v-bendit-nyappterm-1904.

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