107 N.Y.S. 310 | N.Y. App. Term. | 1907
This is an appeal from an order of the City Court, dismissing the complaint “ upon the summons, complaint and answer herein, and upon plaintiff’s statement upon the record that the note herein sued upon is lost and that no bond has been given by plaintiff to indemnify defendant,” and also denying plaintiff’s motion to set aside said dismissal and to grant a new trial, and from the judgment entered upon said order. This action was commenced in October, 1906, and is based on an alleged promissory note, payable on demand, made by defendant in 1898. The answer is a general denial and the Statute of Limitations. It was admitted at the commencement of the trial that the note had been lost and that no bond had been given, as required by section 1917 of the Code, which provides for an undertaking
The order dismissing the complaint must he reversed and the judgment entered must be vacated, and a new trial granted, with costs to appellant to abide the event.
Present: Gildersleeve, Leventritt and Erlanger, J J.
Order reversed and judgment vacated and new trial granted, with costs to appellant to abide event.