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Vitigliano v. Filusia

101 N.Y.S. 20 Court N.Y. App. Term Decision date 1906-11-14 English

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p. 20
VITIGLIANO v. FILUSIA et al.
(Supreme Court, Appellate Term.
November 14, 1906.)

Headnote

Appeal—Review—Questions of Fact—Sufficiency of Evidence.
Where the pleadings present an issue of fact, and the burden is on the plaintiff, and there is no evidence, and nothing in the nature of a concession, a judgment for plaintiff must be reversed.
[Ed. Note.-—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3981, 3982.]
Appeal from Municipal Court, Borough of Manhattan, First District. Action by Ninetta Vitigliano against Rasolino Filusia and another. From a judgment in favor of plaintiff, defendants appeal. Reversed, and new trial ordered.
Argued before GILDERSLEEVE, DUGRO, and DOWLING, JJ.
Rosario Maggio, for appellants.
Samuel Lewis, Jr., for respondent.

The pleadings presented an issue of fact, the burden being upon the plaintiff. There was no evidence, and nothing in the nature of a concession, and therefore the judgment must be reversed, and a new trial ordered, with costs to appellant to abide the event.