Hyperlawhypertext legal database Holly v. Rosenstein 155 N.Y.S. 408

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Holly v. Rosenstein

155 N.Y.S. 408 Court Argued October term, 1915, before BIJUR, PAGE, and SHEARN, JJ. Decision date 1915-11-03 English

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p. 408
HOLLY v. ROSENSTEIN et al.
(Supreme Court, Appellate Term, First Department.
November 3, 1915.)

Headnote

Trial <§=162—Dismissal—Time for Motion.
It is error to sustain defendants’ motion to dismiss on the ground of failure of proof before plaintiff had rested.
[Ed. Note.—For other cases, see Trial, Cent. Dig. § 370; Dec. Dig. <§=162.]
Appeal from Municipal Court, Borough of Manhattan, Third District.
Action by Willis Holly against Harry Rosenstein and another. From an order dismissing the complaint, and denying plaintiff’s motion for a new trial, plaintiff appeals. Reversed, and new trial granted.
Argued October term, 1915, before BIJUR, PAGE, and SHEARN, JJ.
Theodore T. Baylor, of New York City, for appellant.
Abraham A. Silberberg, of New York City, for respondents.

The record shows that the defendant made a motion to dismiss the action before the plaintiff had rested, which motion was granted for failure of proof. Such action was unwarranted.

The judgment must therefore be reversed, and a new trial granted, with $30 costs to appellant to abide the event,