Ducas v. Loonen — 143 N.Y.S. 1114

Majority

p. 1114

DUCAS v. LOONEN.

(Supreme Court, Appellate Division, First Department.

October 31, 1913.)

Headnote

Appeal from Trial Term, New York County. Action by Benjamin P. Ducas against Robert Loonen. Judgment for defeadant, and plaintiff appeals. Reversed, and new trial ordered. Walter N. Seligsberg, of New York City, for appellant Rarrie C. Manheim, of New York City, for respondent.

We think that the evidence adduced by the plaintiff established a prima fade case, and it was error to dismiss the complaint. The letter of the attoraey for the plaintiff, written after the commencement of the action, was incompetent to destroy the cause of action, and was improperly admitted, unless set up by way of supplemental pleading. Judgment reversed, and new trial ordered, with costs to appellant to abide the event.

DOWLING, S., dissents.