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James Livingston Construction Co. v. Redmond

150 N.Y.S. 1021 Court Argued December term, 1914, before GUY, BIJUR, and PAGE, JJ. Decision date 1915-01-07 English

Delivered by BIJUR, J.

Contents

Majority

p. 1021
JAMES LIVINGSTON CONST. CO. v. REDMOND.
(Supreme Court, Appellate Term, First Department.
January 7, 1915.)

Headnote

Appeal and Error (§ 1133[1] )—Review—Record.
Where the court, on appeal from an order setting aside a judgment on the pleadings and for a new trial, cannot determine, because of the confusion in the record, the reasons actuating the lower court, the order will be affirmed, and the cause remitted for further proceedings.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4450-4453; Dec. Dig. § 1133.*]
Appeal from Municipal Court, Borough of Manhattan, Seventh District.
Action by the James Livingston Construction Company against William H. Redmond. From an order of the Municipal Court, setting aside a judgment for plaintiff and granting a new trial, plaintiff appeals. Affirmed, and cause remitted.
Argued December term, 1914, before GUY, BIJUR, and PAGE, JJ.
George H. Abbott, of New York City, for appellant.
William J. Curtin, of Brooklyn, for respondent.

Plaintiff sues for rent. It appears from the exceedingly brief minutes that at the opening of the trial the plaintiff moved for judgment on the pleadings. As the pleadings then stood, no issue was raised by the answer, and the motion should have been granted; but, following a colloquy, plaintiff “offered the pleadings in evidence” and rested, whereupon the defendant moved to dismiss. The court then granted plaintiff’s motion for judgment. Subsequently it set aside this judgment, saying that the minutes showed that the answer had been amended so as to deny the allegation of nonpayment of rent. As originally transcribed, the minutes do show a denial of this allegation; but as amended by the defendant’s attorney in longhand, and as settled by consent of the parties, they admit nonpayment of rent.

We assume that, at the time the judge below made the order appealed from, the minutes in their amended form were not before him; but, owing to the confusion in the record, we are unable to determine what reasons may have actuated the court in reaching this decision. Under the circumstances, we think that the interests of justice will be best subserved by affirming the order, without costs, and remitting the case for further proceedings upon the pleadings or otherwise, as the parties may be advised. All concur.