Duff v. Gallo — 72 N.Y.S. 156

Majority

p. 156

DUFF v. GALLO et al.

(Supreme Court, Appellate Division, Second. Department.

October 4, 1901.)

Headnote

Parties—ÍT onjoinder—Judgment.

Where, in a suit to recover for work done on certain premises, it is established that the property was owned arid leased by parties not joined in the action, and a nonjoinder of defendants is pleaded, it is proper to enter judgment for defendant without prejudice to plaintiff in bringing a new action.

Hirsehberg, J., dissenting.

A-ppeal from municipal court, borough of Brooklyn.

p. 157

Action by William A. F. Duff against Severio Gallo, impleaded with another. From a judgment in favor of defendant .Severio Gallo, plaintiff appeals.

Affirmed.

Argued before GOODRICH, P. J., and WOODWARD, HIRSCHBERG, JENKS, and SEWEEL, JJ.

Corn & Lazansky, for appellant.

O’Hare & Dinnean, for respondent.

After reading the evidence in the light of the plaintiff’s brief, we are of opinion that it does not support the cause of action alleged, and that the judgment in favor of the defendant, without prejudice to the plaintiff in bringing a new action, should be affirmed. The defendant Gallo was not shown to have had any interest in the premises where the work was done by the plaintiff’s assignor, and the evidence in support of the alleged agency or partnership of Figundio is by no means so convincing as to warrant this court in holding that the decision-of the court below that the plaintiff had failed to prove his cause of action was not justified at the close of the case. The documentary evidence establishes that the property was owned and leased by parties who were, not brought into the action, and the amendment of the pleadings in accordance with the proved facts, pleading a nonjoinder of parties defendant, made the disposition of the case in the manner of the court below entirely proper.

The judgment appealed from should be affirmed, with costs. All concur, except HIRSCHBERG, J., who dissents.