120 N.Y.S. 75 | N.Y. App. Term. | 1909
The complaint in this action was oral and was as follows: “Work, labor and services rendered and materials furnished.” A bill of particulars was demanded and furnished which stated that, “ in and about the month of February, 1909, plaintiff performed labor and furnished materials to and for the defendant at her request, consisting of * * * of the agreed price and value of $165. That besides the labor and materials aforesaid, this plaintiff at defendant’s request furnished materials * * * including painting * * * of the reasonable value (naming each item),” the sum total amounting to $217. At the opening of the trial the defendant moved to dismiss the complaint upon the ground that it failed to state facts sufficient to constitute a cause of action. This motion was promptly denied and an exception taken. The defendant then proceeded to trial upon the express statement made by the court that the trial should be without prejudice to the motion.
Goff, J., concurs.
Lehman, J., dissents.
Judgment reversed and new trial ordered, with costs to abide event.