Simon-Lichtenstein-Pachner Co. v. Starrells — 106 N.Y.S. 1088

Majority

p. 1088

SIMON-LICHTENSTEIN-PACHNER CO. v. STARRELLS.

(Supreme Court, Appellate Term.

November 29, 1907.)

Headnote

Appeal—Reversal—Necessity op New Trial.

Where the trial justice rendered judgment for plaintiff, though it proved no cause of action, and dismissed the counterclaim, which was clearly established, judgment must be reversed for a new trial.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4604, 4609.]

p. 1089

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

Action by the Simon-Lichtenstein-Pachner Company against Morris Starrells. From a judgment for plaintiff, and dismissing defendant’s counterclaim, defendant appeals. Reversed, and a new trial ordered.

Argued before GILDERSLEEVE, P. J., and LEVENTRITT and ERLANGER, JJ.

Jackson, Hollender & Frank, for appellant.

Myers & Goldsmith (Edward W. Drucker, of counsel), for respondent.

The trial justice rendered judgment in favor of plaintiff, though it proved no cause of action, and dismissed the counterclaim, which was clearly established. There must be a new trial.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event.