Bruck v. Gilmartin & Dewell — 101 N.Y.S. 527

Majority

p. 527

BRUCK et. al. v. GILMARTIN & DEWELL.

(Supreme Court, Appellate Term.

December 11, 1906.)

Headnote

Appeal—Record—Defects—Correction.

Where the record is conflicting as to who are parties plaintiff and defendant, and as to the cause of action involved, it will be returned to the trial court for correction.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 2830-2833.]

Appeal from Municipal Court, Borough of Manhattan, First District.

Action by George A. Bruck and another against Gilmartin & Dewell. From a judgment for plaintiffs, defendants appeal. Record returned to the trial court for correction.

Argued before GILDERSLEEVE, FITZGERALD, and DAVIS, JJ.

Reno R. Billington, for appellants.

Adolph M. Schwartz, for respondents.

The record in this case is somewhat of an enigma. The summons, complaint, and answer are entitled, “John J. Gilmartin and Bert B. Dewell against George H. Bruck and Gustave A. Bickert, doing business under the firm name and style of Bruck & Co.” The complaint sets forth that plaintiffs gave certain goods to defendants to be made up into garments, and that the work was so badly done that the plaintiffs had to employ others to do it over again, whereby plaintiffs were damaged $578. The answer is a general denial. The testimony, on the other hand, was taker! in a suit in which the parties were reversed, and Bruck and Bickert were plaintiffs and Gilmartin & Dewell were the defendants. To judge from the nature of the evidence given by Bruck and Bickert the action would seem to be an account stated.

The record must be returned to the court below for correction.