Smith v. Buckley

Appellate Terms of the Supreme Court of New York

Smith v. Buckley

152 Misc. 302, 273 N.Y.S. 330, 1934 N.Y. Misc. LEXIS 1491

CourtAppellate Terms of the Supreme Court of New York

DecidedJuly 12, 1934

StatusPublished

This text of 152 Misc. 302 (Smith v. Buckley) 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

Smith v. Buckley, 152 Misc. 302, 273 N.Y.S. 330, 1934 N.Y. Misc. LEXIS 1491 (N.Y. Ct. App. 1934).

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Opinion

Per Curiam.

While there is a recital in the judgment in the prior action that judgment was rendered in favor of defendant against plaintiff after motion to dismiss at the end of plaintiff’s case, the actual adjudication is that defendant recover from plaintiff thirty-two dollars, costs and disbursements. It is undisputed that the prior dismissal was due to the absence of a material witness for the plaintiff; presumptively the dismissal was without prejudice (Mauro v. Cooper, 181 App. Div. 884); and the denial of plaintiff’s motion to correct the record of the prior trial does not defeat the cause of action established herein.

Judgment reversed, with thirty dollars costs, and judgment directed for the plaintiff for the amount demanded in the complaint, with costs.

All concur; present, Callahan, Frankenthaler and Shientag, JJ.

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Per Curiam.

While there is a recital in the judgment in the prior action that judgment was rendered in favor of defendant against plaintiff after motion to dismiss at the end of plaintiff’s case, the actual adjudication is that defendant recover from plaintiff thirty-two dollars, costs and disbursements. It is undisputed that the prior dismissal was due to the absence of a material witness for the plaintiff; presumptively the dismissal was without prejudice (Mauro v. Cooper, 181 App. Div. 884); and the denial of plaintiff’s motion to correct the record of the prior trial does not defeat the cause of action established herein.

Judgment reversed, with thirty dollars costs, and judgment directed for the plaintiff for the amount demanded in the complaint, with costs.

All concur; present, Callahan, Frankenthaler and Shientag, JJ.

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Bluebook (online)

152 Misc. 302, 273 N.Y.S. 330, 1934 N.Y. Misc. LEXIS 1491, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-buckley-nyappterm-1934.

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