
    Frances C. Ephriam, Appellant, v. Herman Kinstler and Another, Respondents.
    Supreme Court, Appellate Term, First Department,
    February 12, 1925.
    Trial — new trial — judgment dismissing complaint in action by assignee for rent past due — failure to prove assignment — proof of assignment available — exception may be filed on appeal — new trial granted.
    An assignee in an action for rent past due is entitled to an opportumty to submit proof of the assignment, and where, on appeal from a judgment dismissing the complaint after trial before the court, it is alleged that such proof is available. the case will be sent back for a new trial.
    Failure to file an exception to the decision dismissing plaintiff’s complaint is not jurisdictional, but procedural and the exception may be filed upon appeal.
    Appeal by plaintiff from a judgment of the City Court of the City of New York entered upon a dismissal of the complaint after trial before the court, a jury having been waived.
    
      Solon B. Ldlienstern [Samuel D. Lasky of counsel], for the appellant.
    
      Robinson, Grosser & Robinson [Robert MúC. Robinson of counsel], for the respondents.
   Per Curiam:

The learned trial justice rightly decided that there was no showing of an assignment to the plaintiff of the rents past due. We are of the opinion, however, that as that point had not been made upon the trial an opportunity should have been afforded the plaintiff of submitting proof that there was such an assignment. As the plaintiff alleges that such proof is available we are sending the case back for a new trial. The failure to file an exception to the decision was not jurisdictional, but procedural, and we permit an exception to be filed. (Termini v. Huth, 191 App. Div. 218; Lichtbach v. Kelbach, 186 N. Y. Supp. 126.)

Judgment reversed and a new trial ordered, with costs to abide the event.

All concur; present, Bijur, Mullan and Cotillo, JJ.  