
    Benjamin F. Winfield, Appellant, v. Frederick A. Cauchois, Respondent.
    Appeal from a judgment dismissing the complaint of the plaintiff, rendered in the Municipal Court, eighth district, borough of Manhattan. „ ' • : >
    Lee McCallum,.for appellant.
    Arthur C. Palmer, for'respondent.
   Freedman, P. J.

This action was brought by the plaintiff, as assignee of the cause of action, to recover the value of work, labor and materials furnished by his assignors to the defendant.1' The pleadings'were verified. The sufficiency 'Of the denial of the assignment contained in the answer may be questioned, but in fact the trial proceeded upon the assumption 'that the assignment -had been put in issue, and the testimony of the plaintiff utterly failed to establish an assignment. . ' .

But, independently of. that qiiestion, the dismissal of the- com'plaint for insufficiency of proof cannot be disturbed for the following reason, viz.: The answer fully and sufficiently denied the allegations'of the complaint as to the performance of the work and labor, and the furnishing of the materials, and upon these points the plaintiff neither gave nor offered to give testimony. He should at least have moved for leave to complete his case and offered to prove performance^ but he closed his case without making any such effort. Judgment should be affirmed, with costs.

MagLeah and .Leventeitt, J J., concur.

Judgment affirmed, with costs'to respondent.  