Gottesman v. Heiden — 88 N.Y.S. 957

Majority

p. 957

GOTTESMAN v. HEIDEN.

(Supreme Court, Appellate Term.

June 23, 1904.)

Headnote

1. Appeal—Defective Recobd—Review.

A claim on appeal that evidence of representations was erroneously admitted, because not pleaded in a paragraph of the complaint, cannot be considered where the complaint is not attached to, or made part of, the return.

p. 958

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

Action by Louis Gottesman against David Heiden. From a judgment for plaintiff, defendant appeals. Affirmed.

Argued before FREEDMAN, P. J., and MacLEAN and SCOTT,

Stanislaus N. Tuckman, for appellant.

Samuel Salinsky, for respondent.

To the counsel for the appellant, referring in his brief to a certain paragraph of the complaint, and urging error on the part of the trial justice in the reception of evidence as to representations not therein pleaded, it suffices to say that said or any complaint is not attached to, or made part of, the return. Upon oral pleadings, apparently, and upon conflicting testimony respecting the buying and selling of a restaurant and business, the trial justice found in favor of the plaintiff, and his determination calls for no interference, particularly as the earlier or first lease of the premises, under which, as claimed, “the place” was to be transferred, contained a clause against underletting by the lessee of the whole or any part without the written consent of the lessor, and consent was not shown.

Judgment affirmed, with costs. All concur.