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Mashkowitz v. O'Connell

91 N.Y.S. 115 Court N.Y. App. Term Decision date 1904-12-07 English

Delivered by BISCHOFF, J.

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p. 115
MASHKOWITZ v. O'CONNELL.
(Supreme Court, Appellate Term.
December 7, 1904.)

Headnote

1. Dismissal—Conclusiveness—Appeal—Statute.
Under Municipal Court Act (Laws 1902, p. 1561, c. 580) § 249, providing that a judgment that the action may be dismissed on the merits, with costs, may be rendered where at the close of the whole case the court is of opinion that plaintiff is not entitled to recover, a judgment dismissing a complaint on the merits, which is supported by credible evidence on one ground, cannot be attacked as erroneous on some other ground.
Appeal from Municipal Court, Borough of Manhattan, Thirteenth District.
Action by Samuel J. Mashkowitz against Maurice A. O’Connell. From a judgment for defendant, dismissing the complaint on the merits, plaintiff appeals.
Affirmed.
Argued before FREEDMAN, P. J., and BISCHOFF and GILDERSEEEVE, JJ.
Gustavus A. Rogers, for appellant.
Daniel Daly, for respondent.

The judgment for dismissal of the complaint upon the merits (Municipal Court Act, § 249; Daws 1902, p. 1561, c. 580) is supported by credible evidence that the plaintiff was not employed as a broker, but was dealt with as one who asserted himself to be an intending purchaser. Thus we cannot assume that the conclusion was reached upon some other ground, assailed by the appellant as erroneous. It would appear, however, that the absence of written authority was fatal to the case. Whiteley v. Terry, 83 App. Div. 197 , 82 N. Y. Supp. 89 .

Judgment affirmed, with costs. All concur.

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