Opinion
July, 1898.
Louis H. Levin, for appellants.
Elias Rosenthal, for respondent.
The judgment in this case rests not upon proof of the plaintiff's cause of action, but on certain qualified admissions made by the counsel for the defendants on the trial and a stipulation entered into between the attorneys in open court. One of the conditions of the stipulation was that all of the goods should be returned by the plaintiff to the defendants, a requirement which does not seem to have been observed, as, according to the statement made by the justice at the close of the case, 169 articles were missing. Furthermore, the admission of the counsel for defendants was not that $200 was due to the plaintiff, but that if the plaintiff had performed all the work and delivered it properly, he would be entitled to $200; whereas he had damaged some of the goods to the extent of $23.70, and had also failed to return others, aggregating in value over $300. There was, therefore, nothing in this case, so far as appears from the return, to support a judgment in favor of the plaintiff for $200, or for any other sum.
Judgment reversed and a new trial ordered, with costs to the appellants to abide the event.
Present: BEEKMAN, P.J., GILDERSLEEVE and GIEGERICH, JJ.
Judgment reversed and new trial ordered, with costs to appellants to abide event.