Opinion
April 1, 1927.
Appeal from the Municipal Court, Borough of Manhattan, Seventh District.
Manton Marks, for the appellant.
Abraham Brekstone, for the respondent.
The action was brought on two theories: (1) Damages for defendant acting as agent for plaintiff without authority; (2) damages by reason of defendant's false testimony as a witness in another action. The sole issue submitted to the jury was whether under the second count the plaintiff was entitled to recover. This was error, for no cause of action exists in favor of a defeated party to a litigation against a witness who gave material testimony on the trial for false swearing or fraud in so testifying. ( Silverman v. Doran, 23 Misc. 96.) If, however, as claimed in the complaint, in relation to the real property in question the plaintiff was merely a dummy for her husband during the period covered by the making of repairs, the indebtedness for the work done, as between the parties to this action, was that of the defendant, not of the plaintiff, and she would be entitled to reimbursement for payment of the claim in the former suit.
Judgment reversed and a new trial ordered, with thirty dollars costs to appellant to abide the event.
All concur; present, DELEHANTY, LYDON and LEVY, JJ.