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Kalmayer v. Twietmayer

Supreme Court, Appellate Term, First Department
Nov 14, 1935
157 Misc. 418 (N.Y. App. Term 1935)

Opinion

November 14, 1935.

Appeal from the Municipal Court of New York, Borough of Manhattan, Sixth District.

Louis A. Schenfield, for the appellant.

Jacob Silverstein, for the respondents.


It was error for the trial court to deny plaintiff's motion for an adjournment of the case on his plea of surprise when the defendant for the first time at the trial raised the issue of usury. However, the record establishes that plaintiff was not a holder in due course and for value and that the action was prematurely brought. The plaintiff, therefore, was not entitled to recover.

Judgment modified by providing that the dismissal of the complaint is without prejudice and as modified affirmed, with ten dollars costs to appellant.

All concur. Present — LYDON, CALLAHAN and SHIENTAG, JJ.


Summaries of

Kalmayer v. Twietmayer

Supreme Court, Appellate Term, First Department
Nov 14, 1935
157 Misc. 418 (N.Y. App. Term 1935)
Case details for

Kalmayer v. Twietmayer

Case Details

Full title:FELIX KALMAYER, Appellant, v. MARTHA TWIETMAYER and Another, Respondents…

Court:Supreme Court, Appellate Term, First Department

Date published: Nov 14, 1935

Citations

157 Misc. 418 (N.Y. App. Term 1935)
283 N.Y.S. 856