Winfield v. Cauchois

Appellate Terms of the Supreme Court of New York

Winfield v. Cauchois

27 Misc. 773, 57 N.Y.S. 763

CourtAppellate Terms of the Supreme Court of New York

DecidedApril 15, 1899

StatusPublished

This text of 27 Misc. 773 (Winfield v. Cauchois) 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

Winfield v. Cauchois, 27 Misc. 773, 57 N.Y.S. 763 (N.Y. Ct. App. 1899).

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Opinion

Freedman, P. J.

This action was brought by the plaintiff, as assignee of the cause of action, to recover the value of work, labor and materials furnished by his assignors to the defendant.1' The pleadings'were verified. The sufficiency 'Of the denial of the assignment contained in the answer may be questioned, but in fact the trial proceeded upon the assumption 'that the assignment -had been put in issue, and the testimony of the plaintiff utterly failed to establish an assignment. . ' .

But, independently of. that qiiestion, the dismissal of the- com'plaint for insufficiency of proof cannot be disturbed for the following reason, viz.: The answer fully and sufficiently denied the allegations'of the complaint as to the performance of the work and labor, and the furnishing of the materials, and upon these points the plaintiff neither gave nor offered to give testimony. He should at least have moved for leave to complete his case and offered to prove performance^ but he closed his case without making any such effort. Judgment should be affirmed, with costs.

MagLeah and .Leventeitt, J J., concur.

Judgment affirmed, with costs'to respondent.

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Freedman, P. J.

This action was brought by the plaintiff, as assignee of the cause of action, to recover the value of work, labor and materials furnished by his assignors to the defendant.1' The pleadings'were verified. The sufficiency 'Of the denial of the assignment contained in the answer may be questioned, but in fact the trial proceeded upon the assumption 'that the assignment -had been put in issue, and the testimony of the plaintiff utterly failed to establish an assignment. . ' .

But, independently of. that qiiestion, the dismissal of the- com'plaint for insufficiency of proof cannot be disturbed for the following reason, viz.: The answer fully and sufficiently denied the allegations'of the complaint as to the performance of the work and labor, and the furnishing of the materials, and upon these points the plaintiff neither gave nor offered to give testimony. He should at least have moved for leave to complete his case and offered to prove performance^ but he closed his case without making any such effort. Judgment should be affirmed, with costs.

MagLeah and .Leventeitt, J J., concur.

Judgment affirmed, with costs'to respondent.

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Bluebook (online)

27 Misc. 773, 57 N.Y.S. 763, Counsel Stack Legal Research, https://law.counselstack.com/opinion/winfield-v-cauchois-nyappterm-1899.