Lobell-Aborn Auto Co. v. O'Connor — 157 N.Y.S. 146

Majority

p. 146

LOBELL-ABORN AUTO CO., Inc., v. O'CONNOR.

(Supreme Court, Appellate Term, First Department.

February 10, 1916.)

Headnote

Judgment <§=>255—Dismissal oe Complaint—Propriety.

After dismissal bf defendant’s counterclaim, in an action for gasoline furnished for which liability was admitted, it was error to dismiss the complaint, as judgment should have been given for plaintiff for the amount concededly due.

[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 445; Dec. Dig. <§=>255.]

<@s^For other cases see same topic & KEY-NUMBÉR in all Key-Numbered Digests & Indexes

Appeal from Municipal Court, Borough of Manhattan, Third District.

Action by the Lobell-Aborn Auto Company, Incorporated, against Edward L. O’Connor. From a judgment dismissing the complaint, plaintiff appeals. Reversed, and judgment directed for plaintiff.

Argued January term, 1916, before GUY, BIJUR, and GAVEGAN, JJ.

Abram Goodman, of New York City, for appellant.

Herman H. Levy, of New York City, for respondent.

This action was brought for gasoline furnished by plaintiff to defendant of the value of $13.20, liability for which defendant admitted. Upon the trial the court dismissed the complaint, and also dismissed the counterclaim. When the counterclaim. was dismissed, judgment should have been given for plaintiff for tire amount concededly due it.

Judgment reversed, with $10 costs to appellant, and judgment directed for the plaintiff for the sum of $13.20 and appropriate costs in the court below. All concur.