Lesser v. Kivowitz
Selig Lesser v. Elkonan Kivowitz
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Per Curiam.
The plaintiff herein claimed ownership of certain chattels and to have obtained his title thereto by virtue of a chattel mortgage upon which the mortgagor defaulted. The pleadings were oral and the answer a general denial. At the close of the plaintiff’s case, the defendant moved to dismiss the complaint upon the ground that plaintiff had failed to prove damages and also that the property shown to have been in the possession of the defendant was not the same property covered by the mortgage. This motion was denied and the defendant thereupon rested without giving any testimony. The court below rendered a judgment absolute against the plaintiff and in favor of the defendant.
A judgment of this character can only be given when it appears from the whole case that the plaintiff cannot recover as a matter of law. Mun. Ct. Act, § 249 ; Sultan v. Misrahi, 47 Misc. Rep. 655 . In the case at bar the plaintiff failed in his proof and the judgment should have been without prejudice to a new action. Mun. Ct. Act, § 248.
Judgment modified by providing that the complaint be dismissed, with costs, but without prejudice to a new action, and, as modified, affirmed, without costs of this appeal to either party.
Present: Seabuby, Guy and Bijub,' JJ.
Judgment modified, and, as modified,- affirmed.
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