Hyperlawhypertext legal database New York Architectural Terra Cotta Co. v. Eden 23 N.Y.S. 349

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New York Architectural Terra Cotta Co. v. Eden

23 N.Y.S. 349 Court General Term. Decision date 1893-05-09 English

Delivered by FITZSIMOHS, J.

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p. 349
NEW YORK ARCHITECTURAL TERRA COTTA CO. v. EDEN.
(City Court of New York,
General Term.
May 9, 1893.)

Headnote

Dismissal op Complaint—Evidence.
A complaint whose allegations are sustained by the evidence should not be dismissed.
Appeal from special term.
Action by the New York Architectural Terra Cotta Company against Edward Eden. From a judgment dismissing its complaint, plaintiff appeals.
Reversed.
Argued before EHRLICH, C. J., and FITZSIMOHS, J.
Walter R. Beach, for appellant.'
Ezekiel Fixman, for respondent.

The testimony submitted establishes a sale, delivery, and use by defendant of the terra cotta mentioned in the order of defendant, dated 19th of July, 1889, by plaintiff to defendant. It does not vary from the allegation of the comnlaint, and sustains the same; sufficient facts were presented by said testimony to warrant its submission to the jury for consideration. It was therefore error for the trial justice tor dismiss the complaint. Judgment reversed, and a new trial ordered, with costs to appellant, to abide event of action.