Epstein v. Hirshfields — 135 N.Y.S. 1110

Majority

p. 1110

EPSTEIN v. HIRSHFIELD.

Headnote

(Supreme Court, Appellate Term.

May 9, 1912.)

Appeal from Municipal Court, Borough of Manhattan, Sixth. District. Action- by Solomon Epstein, an .infant, by Charles Epstein, his guardian ad litem, against Mollie Hirschfield. From a judgment dismissing the complaint at the close of plaintiff’s case, entered in the Municipal Court of the City of New. York, plaintiff appeals. Modified and affirmed.

Barnett v. Kopelman, of New York City, for appellant. Lyman A. Spalding, of New York City (Thomas J. Skelly, of New York City, of counsel), for respondent.

The complaint, which was verified, contained no allegation that the steam plant and the radiators in the" building yere under the exclusive control of the landlord, and that he was obligated to keep the same in repair, nor was there any proof given upon the trial to that effect. The dismissal of the complaint was therefore proper, but judgment should have been entered without prejudice to a new action. Judgment modified, by inserting therein the words “without prejudice to a new action," and, as modified, affirmed, without costs in this court to either party.