Singer v. Pollock

Appellate Terms of the Supreme Court of New York

Singer v. Pollock

91 N.Y.S. 755

CourtAppellate Terms of the Supreme Court of New York

DecidedJanuary 17, 1905

StatusPublished

This text of 91 N.Y.S. 755 (Singer v. Pollock) 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

Singer v. Pollock, 91 N.Y.S. 755 (N.Y. Ct. App. 1905).

Pincite

Opinion

SCOTT, J.

Upon the evidence as disclosed by the return the plaintiff failed to make out a case against this appellant because he did not prove service of notice of dishonor, an affidavit of non-service having'been filed with the answer. Code Civ. Proc. § 923. The respondent protests that the return does not contain certain evidence, which, as he says, would supply the defect of proof, and he submits with his brief what he declares to #>e a transcript of the omitted testimony. Of course, we cannot look beyond the return for the purpose of determining this appeal; but, if it were allowable to consider what is alleged to be the omitted testimony, it would be found that the defect in evidence is not supplied thereby, so far as this appellant is concerned. We think that justice will be best served if this cause be sent back for a retrial.

Judgment reversed, and a new trial granted, with costs to the appellant to abide the event. All concur.

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SCOTT, J.

Upon the evidence as disclosed by the return the plaintiff failed to make out a case against this appellant because he did not prove service of notice of dishonor, an affidavit of non-service having'been filed with the answer. Code Civ. Proc. § 923. The respondent protests that the return does not contain certain evidence, which, as he says, would supply the defect of proof, and he submits with his brief what he declares to #>e a transcript of the omitted testimony. Of course, we cannot look beyond the return for the purpose of determining this appeal; but, if it were allowable to consider what is alleged to be the omitted testimony, it would be found that the defect in evidence is not supplied thereby, so far as this appellant is concerned. We think that justice will be best served if this cause be sent back for a retrial.

Judgment reversed, and a new trial granted, with costs to the appellant to abide the event. All concur.

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Bluebook (online)

91 N.Y.S. 755, Counsel Stack Legal Research, https://law.counselstack.com/opinion/singer-v-pollock-nyappterm-1905.