Kush v. Howes — 85 N.Y.S. 1124

Majority

p. 1124

KUSH v. HOWES.

(Supreme Court, Appellate Term.

January 7, 1904.)

Headnote

L Bills and Notes—False Representations—Actions—Judgments—Body Execution.

Where, In an action for money loaned on defendant’s note, plaintiff alleged that he was induced to loan the money by defendant’s false and fraudulent representations, and defendant admitted executing the note, but denied the false statements, and made no motion to dismiss or for judgment either at the close of plaintiff’s case or at the close of the whole case, he could not object to a judgment in favor of plaintiff on the note which contained no provision on which a body execution could be issued.

Appeal from Municipal Court, Borough of Manhattan, Tenth District.

Action by Gustave Kush against George Howes. From a Municipal Court judgment in favor of plaintiff, defendant appeals.

Affirmed.

Argued before FREEDMAN, P. J., and GIEDERSEEEVE and GREENBAUM, JJ.

E. T. Fellows, for appellant.

O. R. Brandt, for respondent.

Plaintiff sued upon a promissory note made by the defendant for money loaned, and claimed in addition to the usual allegations of a complaint upon a promissory note that said money was loaned upon the false and fraudulent representation made by defendant to plaintiff to the effect that one Gates was indebted to defendant, and that the money from Gates would be due prior to the time defendant’s note was due. Defendant, by his answer, admitted the loan and the making and executing of the note to plaintiff, but denied the making of any false statements. The plaintiff and the defendant were the only witnesses sworn on the trial, and defendant admitted his indebtedness to plaintiff. No motion was made to dismiss the complaint or for judgment in defendant’s favor either at the close of the plaintiff’s case or at the close of the whole case, and the court below rendered judgment in favor of the plaintiff and against the defendant for the amount claimed, but made no provision in the judgment for the arrest or imprisonment of the defendant, and therefore no execution can be issued against the body of the defendant. The defendant cannot be aggrieved by such judgment, and the appeal is wholly without merit.

Judgment affirmed, with costs.