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Tenesci v. Societa Italiano Abruzzo Citro Gabriele Rosetti

51 N.Y.S. 362 Court N.Y. App. Term Decision date 1898-05-03 English

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p. 362
TENESCI v. SOCIETA ITALIANO ABRUZZO CITRO GABRIELE ROSETTI.
(Supreme Court, Appellate Term.
May 3, 1898.)

Headnote

.Appeal—Reversal.
Where it appears from the return on appeal from a district-court judgment that documents on which the judgment purports to he based were not in fact introduced in evidence at the trial, the judgment must be reversed.
On rehearing. For former opinion, see 50 N. Y. Supp. 685 .
Reargued before BEEKMAN, P. J., and GILDERSLEEVE and GIEGERICH, JJ.

The justice, in rendering judgment in favor of the defendant, made the following indorsement upon the back of

p. 363
the summons: “Judgment for the defendant, as he failed to comply with the by-laws; and, further, that his sickness was not such as to prevent him working.” An examination of the return as amended discloses the fact that the by-laws upon which the justice assumed to act had never been introduced in evidence. It thus appears that the judgment was rendered upon facts not proven upon the trial. It therefore follows that the judgment must be reversed, and a new trial ordered, with costs to the appellant to abide the event.