227 A.D. 626 | N.Y. App. Div. | 1929
Judgment reversed on the law, and judgment directed for plaintiff, with costs. Finding of fact 6 and conclusions of law 3, 4, 5 and 6 are reversed and plaintiff’s proposed findings of fact numbered 6 to 13, both inclusive, and conclusions of law numbered 3 to 7, both inclusive, found. This court is of the opinion that the plaintiff established a prima facie case of infancy (Koester v. Rochester Candy Works, 194 N. Y. 92), and the defendants defaulting, and no testimony being offered in contradiction of the plaintiff’s proof, the learned trial court was not at liberty to disregard it. (Hull v. Littauer, 162 N. Y. 569.) In view of this decision the appeal from the order denying motion for a new trial is dismissed. Lazansky, P. J., Rich, Young, Kapper and Seeger, JJ., concur.