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Kornfeld v. David Stevenson Brewing Co.

111 N.Y.S. 641 Court N.Y. App. Term Decision date 1908-06-30 English

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p. 641
KORNFELD et al. v. DAVID STEVENSON BREWING CO.
(Supreme Court, Appellate Term.
June 30, 1908.)

Headnote

Trial—Dismissal—When Authorized.
When a material fact Is in dispute, the cause must be submitted to tfie jury, and it is error to dismiss the complaint.
(Ed. Note.—For cases in point, see Cent. Dig. vol. 46, Trial, §§ 342, 343, 359-367.1
Appeal from Municipal Court, Borough of Manhattan, Second District.
Action by Max Kornfeld and another, doing business under the firm name of M. & S. Kornfeld, against the David Stevenson Brewing Company. From a judgment of dismissal, plaintiffs appeal.
Reversed, and new trial ordered.
Argued before GILDERSLEEVE, P. L, and MacLEAN and SEA-BURY, JJ.
James S. Friedman for appellants.
Charles A. Voetsch (Anson M. Beard, of counsel), for respondent.

In this action, before a jury, to recover an allowance alleged to be due on beer sold by defendant to plaintiffs, the trial justice dismissed the complaint improperly, because there was a material, even crucial, fact in dispute, viz., whether the promised allowance was or was not for the “license year” running from May, 1905, to May, 1906, and this should have been submitted. The judgment must therefore be reversed, and a new trial ordered.

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