Opinion
April 8, 1959
Appeal from the Steuben County Court.
Present — McCurn, P.J., Kimball, Williams, Goldman and Halpern, JJ.
Judgment in favor of plaintiff Coletta against defendant Stevens reversed on the law and facts, with costs to defendant Stevens and complaint dismissed, with costs. Memorandum: The action was based upon an alleged eviction, actual or constructive. No proof of either was produced and the plaintiff failed to make out a cause of action as a matter of law. Hollbros, Inc., is included in the action as a third-party defendant only and not as a defendant in relation to plaintiff's direct claim. Although Stevens has undertaken to appeal from the judgment of no cause of action on his third-party claim against Hollbros, Inc., no such judgment appears in the record and we cannot pass upon it. However, in view of our decision on the main claim of Coletta v. Stevens, that question has become academic. All concur.