Van Houten v. Oliver

Appellate Terms of the Supreme Court of New York

Van Houten v. Oliver

91 N.Y.S. 36

Appellate Terms of the Supreme Court of New York·Decided December 7, 1904·Published

Opinion

FREEDMAN, P. J.

The action was brought by the plaintiff-upon an allegation that he had been duly appointed trustee in bankruptcy of the Rochester Lamp Company, and other allegations to the effect that two monthly installments of rent had become due to him from the defendant by virtue of the terms of a lease from the Rochester Lamp Company to the defendant. Assuming that the complaint sufficiently alleged the due appointment of the plaintiff as trustee, yet, as the said allegation was denied by the answer, the plaintiff was bound to establish its truth by proof on the trial. No such proof having been adduced, the judgment cannot be sustained.

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

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FREEDMAN, P. J.

The action was brought by the plaintiff-upon an allegation that he had been duly appointed trustee in bankruptcy of the Rochester Lamp Company, and other allegations to the effect that two monthly installments of rent had become due to him from the defendant by virtue of the terms of a lease from the Rochester Lamp Company to the defendant. Assuming that the complaint sufficiently alleged the due appointment of the plaintiff as trustee, yet, as the said allegation was denied by the answer, the plaintiff was bound to establish its truth by proof on the trial. No such proof having been adduced, the judgment cannot be sustained.

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

Van Houten v. Oliver, 91 N.Y.S. 36 (N.Y. Ct. App. 1904).

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91 N.Y.S. 36 (Van Houten v. Oliver) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.