Falk v. Beeckman — 2 N.Y.S. 650

Majority

p. 650

Falk v. Beeckman.

(City Court of New York, General Term.

November 23, 1888.)

Headnote

Practice in Civil Cases—Dismissai^-Insufficienoy of Evidence.

It is improper at trial term to dismiss, the complaint, as not sustained by the ev- • idenoe, without specifying the defects in plaintiff’s proofs.

Appeal from trial term.

Action by Frank Falk against Leonard Beeckman, for the contract price of work done by plaintiff for defendant. Plaintiff appeals from judgment dismissing.his complaint,

Argued before McAdam, C. J. and Ehrlich and McGown, JJ.

p. 651

Lexow & Leo, for appellant. J. C. Shaw, for respondent.

The contract provides that the work to be done was to be paid for every two weeks, as the work progressed. The action was to recover $2,000, the contract price. Upon the proofs the plaintiff may not have been entitled to recover this sum; but it does not follow, where the contract price was payable in installments every two weeks, as the work• progressed, that the plaintiff was entitled to recover nothing. The trial judge dismissed the complaint, but the'printed case fails to show the ground- upon wrhich the dismissal w7as granted. The defects in the plaintiff’s proofs ought to have been specifically pointed out, that the plaintiff might have supplied the deficiencies. Devoe v. Brandt, 58 Barb. 493 ; Newton v. Harris, 6 N. Y. 345 ; Binsse v. Wood, 37 N. Y. 526 . Upon the record, as it stands, the judgment appealed from must be reversed, and a new trial ordered, w7ith costs to abide the event.

Cases cited

Devoe v. Brandt 58 Barb. 493 N.Y. Sup. Ct. 1871-02-07 p. 651
Newton v. Harris 6 N. Y. 345 N.Y. p. 651
Binsse v. Wood 37 N. Y. 526 N.Y. p. 651