Hyperlawhypertext legal database Mitterwallner v. Supreme Lodge of Knights & Ladies of Golden Star 90 N.Y.S. 1076

← Cases

Mitterwallner v. Supreme Lodge of Knights & Ladies of Golden Star

90 N.Y.S. 1076 Court N.Y. App. Term Decision date 1904-12-07 English

Delivered by FREEDMAN, P. J.

Contents

Majority

p. 1076
MITTERWALLNER v. SUPREME LODGE OF KNIGHTS AND LADIES OF GOLDEN STAR.
(Supreme Court, Appellate Term.
December 7, 1904.)

Headnote

L Directing Verdict for Plaintiff.
Where plaintiff sufficiently established the cause oí action, and did not establish the defense of accord and satisfaction, and defendant, on his motion to dismiss on the ground that the contrary was the case, introduced no evidence, but rested, and made no request for submission of any question to the jury when plaintiff moved for direction of a verdict, the direction of a verdict for plaintiff was proper.
2. Amendment of Complaint.
Allowing amendment of the complaint to the extent of a single letter in plaintiff’s surname is proper.,
Appeal from City Court of New York, Trial Term.
Action by Louise Mitterwallner against the Supreme Lodge of the Knights and Ladies of the Golden Star. From a judgment on a verdict directed for plaintiff, and from an order denying a motion for a new trial, defendant .appeals.
Affirmed.
See 76 N. Y. Supp. 1001 ; 78 N. Y. Supp. 1127 ; 86 N. Y. Supp. 786 .
Argued before FREEDMAN, P. J., and BISCHOFF and GILDERSLEEVE, JJ.
W. R. Spooner, for appellant.
M. Strassman, for respondent.

Upon the trial now under review, which is the third trial of this action, the defendant offered no evidence, and the motion for a dismissal of the complaint was based upon two specific grounds, viz.: That the plaintiff had not established the cause of action alleged in the complaint; and, secondly, that the defense set up in the answer of accord and satisfaction had been clearly established by the admissions of the plaintiff upon the witness stand. The motion was denied, and defendant rested, and made no request for the submission of any question to the jury when plaintiff’s motion for the direction of a verdict was made and granted." The case shows that plaintiff’s proof sufficiently established a cause of action for the amount for which the verdict wás directed, and that it did not establish the defense of accord

p. 1077
and satisfaction. The amendment of plaintiff’s surname by one letter was properly allowed. None of defendant’s exceptions presents reversible error.

The judgment and order should be affirmed, with costs. All concur.

Footnotes

  1. If If 2. See Parties, vol. 37, Cent. Dig. § 163.