Sturmer v. Econopouly

Appellate Terms of the Supreme Court of New York

Sturmer v. Econopouly

125 Misc. 819, 211 N.Y.S. 547, 1925 N.Y. Misc. LEXIS 963

CourtAppellate Terms of the Supreme Court of New York

DecidedJanuary 22, 1925

StatusPublished

This text of 125 Misc. 819 (Sturmer v. Econopouly) 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

Sturmer v. Econopouly, 125 Misc. 819, 211 N.Y.S. 547, 1925 N.Y. Misc. LEXIS 963 (N.Y. Ct. App. 1925).

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Opinion

Per Curiam:

Judgment unanimously reversed upon the law and new trial granted, with thirty dollars costs to appellant to abide the event.

The remarks of the trial court at the close of the case indicate that his decision in favor of the defendants was due to the fact that the plaintiff had not proved that his customer was able and willing to purchase on the terms claimed to have been agreed upon. This point had not been made by defendants at any time during the trial, and in fact no motion was made to dismiss the complaint. If defendants were willing to waive the necessity of such proof, the court might well have done so. Having raised the point, however, and having indicated that it was fatal to a recovery by plaintiff, the trial court should have granted plaintiff’s application to be allowed to introduce proof to meet the objection. (Klein v. Sarnoff, 83 Misc. 447; Champion Shoe Machinery Co. v. Landman, 97 id. 642; Asserson v. City of New York, 195 App. Div. 12.)

Present: Cropsey, Lazansky and MacCrate, JJ. .

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Per Curiam:

Judgment unanimously reversed upon the law and new trial granted, with thirty dollars costs to appellant to abide the event.

The remarks of the trial court at the close of the case indicate that his decision in favor of the defendants was due to the fact that the plaintiff had not proved that his customer was able and willing to purchase on the terms claimed to have been agreed upon. This point had not been made by defendants at any time during the trial, and in fact no motion was made to dismiss the complaint. If defendants were willing to waive the necessity of such proof, the court might well have done so. Having raised the point, however, and having indicated that it was fatal to a recovery by plaintiff, the trial court should have granted plaintiff’s application to be allowed to introduce proof to meet the objection. (Klein v. Sarnoff, 83 Misc. 447; Champion Shoe Machinery Co. v. Landman, 97 id. 642; Asserson v. City of New York, 195 App. Div. 12.)

Present: Cropsey, Lazansky and MacCrate, JJ. .

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Bluebook (online)

125 Misc. 819, 211 N.Y.S. 547, 1925 N.Y. Misc. LEXIS 963, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sturmer-v-econopouly-nyappterm-1925.

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