Mead v. Friedberg — 60 N.Y.S. 1143

Majority

p. 1143

MEAD, Appellant, v. FRIEDBERG, Respondent.

(Supreme Court, Appellate Term.

October 25, 1899.)

Headnote

Action by Malissa F. Mead against Simon S. Friedberg. From a judgment in favor of defendant, plaintiff appeals.

Affirmed.

Roger $. Baldwin, for appellant.

Smith & Cochrane, for respondent.

At the close of the plaintiff’s case the defendant moved for a dismissal of the complaint upon various grounds, and, among others, upon the ground that it did not appear that the court had jurisdiction of the action. The trial judge dismissed the complaint, upon the ground that the plaintiff was not the' real party in interest. It is not necessary to determine whether the proper reason was assigned for granting the motion. As there was no proof in the case that the defendant is a resident within the territorial jurisdiction of the court, the dismissal was proper, irrespective of the particular reason assigned, especially as the plaintiff did not ask for leave to supply the defect in her proof. The judgment must therefore be treated as one dismissing plaintiff’s complaint for insufficiency of proof, and, as such, it should be affirmed. Judgment affirmed, with costs. All concur.