Spitzer v. Rosenbaum

Appellate Terms of the Supreme Court of New York

Spitzer v. Rosenbaum

137 N.Y.S. 855

CourtAppellate Terms of the Supreme Court of New York

DecidedNovember 8, 1912

StatusPublished

This text of 137 N.Y.S. 855 (Spitzer v. Rosenbaum) 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

Spitzer v. Rosenbaum, 137 N.Y.S. 855 (N.Y. Ct. App. 1912).

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Opinion

BIJUR, J.

A part of plaintiff’s claim was conceded, namely, $7.-59. The appeal refers to the award of $63.50 on the second cause of action.

The trial of this case was radically confused by insufficiency of pleading and irregular proof thereunder. The result is that the real point in controversy, namely, whether defendants retained 50 cents a week out of plaintiff’s salary conditionally, as security against his going on strike (which it is conceded he did not do), [856]*856or, as defendants claim, whether they retained it absolutely ás compensation for estimated “waste” of material which he would commit, in the course of manufacture, was not submitted to the jury. It is true that this question is not raised by the pleadings; but it was raised by plaintiff’s proofs, and the defendants should have been permitted to meet it by counter proof.

Under the circumstances, the judgment must be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.

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BIJUR, J.

A part of plaintiff’s claim was conceded, namely, $7.-59. The appeal refers to the award of $63.50 on the second cause of action.

The trial of this case was radically confused by insufficiency of pleading and irregular proof thereunder. The result is that the real point in controversy, namely, whether defendants retained 50 cents a week out of plaintiff’s salary conditionally, as security against his going on strike (which it is conceded he did not do), [856]*856or, as defendants claim, whether they retained it absolutely ás compensation for estimated “waste” of material which he would commit, in the course of manufacture, was not submitted to the jury. It is true that this question is not raised by the pleadings; but it was raised by plaintiff’s proofs, and the defendants should have been permitted to meet it by counter proof.

Under the circumstances, the judgment must be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.

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Bluebook (online)

137 N.Y.S. 855, Counsel Stack Legal Research, https://law.counselstack.com/opinion/spitzer-v-rosenbaum-nyappterm-1912.