Buseman v. McGovern — 144 N.Y.S. 1107

Majority

p. 1107

BUSEMAN, Respondent, v. McGOVERN et al., Appellants.

(Supreme Court, Appellate Division, Second Department.

November 14, 1913.)

Headnote

Action by Henry Buseman against Patrick McGovern and Charles Perrin, copartners.

Judgment and order reversed, and new trial granted, costs to abide the event, upon the ground that, fairly construed, the complaint did not charge omission to oil the derrick as one of the defects. The evidence with regard to such omission was seasonably objected to, and, when received, failed to establish by a fair preponderance thereof that the breaking" of the gooseneck was due to such omission.

JENKS, P. J., and CARR, J., concur in the result.