Walsh v. Empire Brick & Supply Co.
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendant, the Empire Brick and Supply Company, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Columbia on the 15th day of October, 1903, granting the plaintiffs" motion to sever the causes of action set forth in the complaint.
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Appeal by the defendant, the Empire Brick and Supply Company, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Columbia on the 15th day of October, 1903, granting the plaintiffs" motion to sever the causes of action set forth in the complaint. The complaint in this action set forth two causes of action, upon the first of which plaintiffs demanded judgment for the sum of $5,457.80 as damages for an alleged breach of contract. In the-second cause of action plaintiffs demanded judgment for $798.86 as. damages for the…
1Opinion of the Court
Smith, J.:
Under section 511 of the Code of Civil Procedure upon admission by defendant of the facts constituting the plaintiffs’ second «cause of action, in the absence of an offer of judgment and acceptance thereof, the plaintiffs were entitled to a severance of the action, with judgment. upon the cause of action admitted. Under that section the plaintiffs were not entitled to costs unless they elected •not to continue the action as to the remaining cause of action. (Waite v. Kaldenberg Co., 68 Hun, 528.) The offer of judgment, .however, for the exact amount claimed in plaintiffs’ second…
2Cases cited3 opinions
- Stillwell v. StillwellNew York Supreme Court · 1894
- Freudenheim v. RaduzinerCity of New York Municipal Court · 1894
- Shepherd v. . MoodheNew York Court of Appeals · 1896