Winfield v. Cauchois — 57 N.Y.S. 763

Majority

p. 763

WINFIELD v. CAUCHOIS.

(Supreme Court, Appellate Term.

April 21, 1899.)

Headnote

Dismissal and Nonsuit—Insufficiency of Proof.

The dismissal of a complaint, in an action for work performed, for want of proof, will not be disturbed, where the answer denied its allegations and plaintiff gave no proof.

Appeal from, municipal court, borough of Manhattan, Eighth district.

Action by Benjamin F. Winfield against Frederick A. Cauchois. From a judgment dismissing his complaint, plaintiff appeals.

Affirmed.

Argued before FREEDMAN, P. J., and MacLEAN and LEVEN-TRITT, JJ.

Lee McCallum, for appellant.

Arthur C. Palmer, for respondent.

This action was brought by the plaintiff, as assignee of the cause of action, to recover the value of work, labor, and materials furnished by his assignors to the defendant. The pleadings were verified. The sufficiency of the denial of the assignment contained in the answer may be questioned, but, in fact, the trial proceeded upon the assumption that the assignment had been put in issue; and the testimony of the plaintiff utterly failed to establish an assignment. But, independently of that question, the dismissal of the complaint for insufficiency of proof cannot be disturbed, for the following reason, viz.: The answer fully and sufficiently denied the allegations of the complaint as to the performance of the work and labor, and the furnishing of the materials; and upon these points the plaintiff neither gave, nor offered to give, testimony. He should, at least, have moved for leave to complete his case, and offered to prove performance; but he closed his case without making any such effort. Judgment should be affirmed, with costs.

Judgment affirmed, with costs to respondent. All concur.