
    (53 Misc. Rep. 602)
    RESHOFSKY v. WEISZ.
    (Supreme Court, Appellate Term.
    April 10, 1907.)
    Trial—Nonsuit—Waiver.
    Where, in an action for goods sold and delivered, defendant, after plaintiff had rested, moved to dismiss on the ground that no delivery had been shown, but, after.his motion was denied, introduced his own evidence, wherein the receipt of the goods was admitted, the defect, if any, in plaintiff’s proof at the time of the motion, was thereby cured.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 46, Trial, § 982.]
    Appeal from Municipal Court, Borough of Manhattan, Fourteenth District.
    
      Action by David Reshofsky against Jacob Weisz. From a judgment for plaintiff, defendant appeals. Affirmed.
    Argued before GILDERSLEEVE, P. J., and GIEGERICH and ERLANGER, JJ.
    Thomas & Oppenheimer, for appellant.
    Rosalie Loew and Travis H. Whitney, for respondent.
   GIEGERICH, J.

The action was brought to recover a balance due on the sale of cigars by the plaintiff to the defendant of the value ot $873.85 and the value of a showcase, $50, after crediting on account the sum of $761, admitted to have been paid. The trial justice rendered judgment for the plaintiff for the balance of $162.85, with costs.

At the close of the plaintiff’s case the defendant’s counsel moved to dismiss on the ground that the plaintiff had failed to prove delivery of several of the items in the bill of' particulars. Whether such motion was well grounded or not at the time it' was made need not be considered, because the defendant in his testimony admitted the receipt of cigars in the precise amount sued for, thus bringing the case within the rule that a defect in the proof existing at the time of the making of a motion to dismiss is cured by evidence afterward adduced by either party. Painton v. North Central Ry. Co., 83 N. Y. 7; Hopkins v. Clark, 158 N. Y. 299, 304, 53 N. E. 27; Reade v. Continental Trust Co., 49 App. Div. 400, 402, 63 N. Y. Supp. 395; Tobin v. Manhattan Savings Inst., 6 Misc. Rep. 110, 26 N. Y. Supp. 14; Moskowitz v. Hornberger, 20 Misc. Rep. 558, 46 N. Y. Supp. 462.

Aside from the point just considered, there is no question in the case, •except one of the weight of evidence; and upon that question we find no reason for differing with the conclusion reached by the trial justice.

Judgment affirmed, with costs. All concur.  