Sugarman v. Sterling

Appellate Terms of the Supreme Court of New York

Sugarman v. Sterling

135 N.Y.S. 595

CourtAppellate Terms of the Supreme Court of New York

DecidedMay 27, 1912

StatusPublished

This text of 135 N.Y.S. 595 (Sugarman v. Sterling) 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

Sugarman v. Sterling, 135 N.Y.S. 595 (N.Y. Ct. App. 1912).

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Opinions

LEHMAN, J.

The plaintiffs, real estate brokers, sued for commissions which they claim they earned in procuring a loan on defendants’ real estate. At the trial they presented a prima facie case with one weak link, viz., there is no competent proof that the manager of the bureau of investments of the Lawyers’ Title Insurance Company who assumed to accept the loan for that company has any authority to do so. Upon this ground the trial justice dismissed the complaint on the merits.

[1] It needs no argument or citation to show that a dismissal on the merits is not authorized where there has been only a failure of proof.

[2] Moreover, I doubt whether a disrnissal even without prejudice would have been proper. The witness was allowed to testify without objection that the Title Insurance Company was ready, able, and willing to make the loan, and the record discloses no motion to strike out this testimony, and no motion to dismiss on the ground that there was no proof that the company was ready, able, and willing to perform. It is true that in a sense the testimony on this point is merely a conclusion of the witness, but, under the circumstances disclosed, I do not think that the defendant is in a position to take advantage of this fact.

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

SEABURY, J., concurs.

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LEHMAN, J.

The plaintiffs, real estate brokers, sued for commissions which they claim they earned in procuring a loan on defendants’ real estate. At the trial they presented a prima facie case with one weak link, viz., there is no competent proof that the manager of the bureau of investments of the Lawyers’ Title Insurance Company who assumed to accept the loan for that company has any authority to do so. Upon this ground the trial justice dismissed the complaint on the merits.

[1] It needs no argument or citation to show that a dismissal on the merits is not authorized where there has been only a failure of proof.

[2] Moreover, I doubt whether a disrnissal even without prejudice would have been proper. The witness was allowed to testify without objection that the Title Insurance Company was ready, able, and willing to make the loan, and the record discloses no motion to strike out this testimony, and no motion to dismiss on the ground that there was no proof that the company was ready, able, and willing to perform. It is true that in a sense the testimony on this point is merely a conclusion of the witness, but, under the circumstances disclosed, I do not think that the defendant is in a position to take advantage of this fact.

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

SEABURY, J., concurs.

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Bluebook (online)

135 N.Y.S. 595, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sugarman-v-sterling-nyappterm-1912.