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Smith v. Buckley

Supreme Court, Appellate Term, First Department
Jul 12, 1934
152 Misc. 302 (N.Y. App. Term 1934)

Opinion

July 12, 1934.

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

Myers, Treanor Keating [ John F. Keating and Hugo F. Ricca, Jr., of counsel], for the appellant.

Medina Sherpick [ H. LeRoy Jackson of counsel], for the respondent.


While there is a recital in the judgment in the prior action that judgment was rendered in favor of defendant against plaintiff after motion to dismiss at the end of plaintiff's case, the actual adjudication is that defendant recover from plaintiff thirty-two dollars, costs and disbursements. It is undisputed that the prior dismissal was due to the absence of a material witness for the plaintiff; presumptively the dismissal was without prejudice ( Mauro v. Cooper, 181 A.D. 884); and the denial of plaintiff's motion to correct the record of the prior trial does not defeat the cause of action established herein.

Judgment reversed, with thirty dollars costs, and judgment directed for the plaintiff for the amount demanded in the complaint, with costs.

All concur; present, CALLAHAN, FRANKENTHALER and SHIENTAG, JJ.


Summaries of

Smith v. Buckley

Supreme Court, Appellate Term, First Department
Jul 12, 1934
152 Misc. 302 (N.Y. App. Term 1934)
Case details for

Smith v. Buckley

Case Details

Full title:EDWARD J. SMITH, Appellant, v. EDWARD E. BUCKLEY, Respondent

Court:Supreme Court, Appellate Term, First Department

Date published: Jul 12, 1934

Citations

152 Misc. 302 (N.Y. App. Term 1934)
273 N.Y.S. 330