Schwartz v. Morris & Co.

Appellate Terms of the Supreme Court of New York

Schwartz v. Morris & Co.

61 Misc. 335, 113 N.Y.S. 524

CourtAppellate Terms of the Supreme Court of New York

DecidedDecember 15, 1908

StatusPublished

This text of 61 Misc. 335 (Schwartz v. Morris & Co.) 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

Schwartz v. Morris & Co., 61 Misc. 335, 113 N.Y.S. 524 (N.Y. Ct. App. 1908).

Pincite

Opinion

Hendrick, J.

The plaintiff established a prima facie case. His testimony, that he tried to buy livers in the open market and found that none could be had, took the measure of damages out of the general rule. It became a question then as to whether there was or was not a market for livers. On that point there was a conflict of testimony, and it was for the jury and not for the court to determine the fact. The trial court erred in dismissing the plaintiff’s complaint at the end of the defendant’s case, and the judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

Giegerich and Ford, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.

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Hendrick, J.

The plaintiff established a prima facie case. His testimony, that he tried to buy livers in the open market and found that none could be had, took the measure of damages out of the general rule. It became a question then as to whether there was or was not a market for livers. On that point there was a conflict of testimony, and it was for the jury and not for the court to determine the fact. The trial court erred in dismissing the plaintiff’s complaint at the end of the defendant’s case, and the judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

Giegerich and Ford, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.

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Bluebook (online)

61 Misc. 335, 113 N.Y.S. 524, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schwartz-v-morris-co-nyappterm-1908.