Klein v. Gallin — 135 N.Y.S. 1121

Majority

p. 1121

KLEIN v. GALLIN et al.

(Supreme Court, Appellate Division, Second Department.

May 9, 1912.)

Headnote

Appeal from Special Term, Kings County. Action by John Klein, as trustee, against Samuel Gallin and others. From a judgment for plaintiff, defendants Louis Gross-man and another appeal. Reversed, and new

trial granted.

See, also, 146 App. Div. 891 , 130 N. Y. Supp. 1117 .

Robert H. Elder, of Brooklyn (Isaac Miller, on the brief), for appellants. Louis J. Altkrug, of Brooklyn, for respondent.

The nineteenth, twentieth, twenty-first, twenty-second, and twenty-third findings of fact are not only against the weight of evidence, but are without any evidence to sustain them; and likewise are the thirteenth and fourteenth findings of fact. The ninth, tenth, eleventh, and twelfth findings of fact are not supported sufficiently by the evidence. This situation requires a reversal of this judgment and a new trial, costs to abide the event. Inasmuch as a prior similar judgment in this action was likewise reversed by this court ( 136 App. Div. 383 , 120 N. Y. Supp. 1036 ), this court now takes occasion to state that it must not be understood in any way as being of opinion that there may not be a recovery of judgment by the plaintiff in this action on a new trial, on sufficient proofs and a consistent determination of the facts presented by the proofs. That question is left entirely open. The judg'ment is reversed upon the law and facts, and a new trial is granted, costs to abide the final award of costs.