
    David Reshofsky, Respondent, v. Jacob Weisz, Appellant.
    (Supreme Court, Appellate Term,
    April, 1907.)
    Taking case from jury and nonsuit — Weight and sufficiency of evidence — Evidence of defendant supplying defects in plaintiff’s proof.
    Where a motion is made by the defendant at the close of plaintiff’s case for a dismissal for a defect in the proof and erroneously denied, defendant’s subsequent admission of the facts not proved cures the error.
    Appeal by the defendant from a judgment of the Municipal Court of the city of blew York, fourteenth district, borough of Manhattan, in favor of the plaintiff, rendered after ia trial had before the court without a jury.
    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 of $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 dose of the plaintiff’s ease 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. Northern Central R. Co., 83 N. Y. 7; Hopkins v. Clark, 158 id. 299, 304; Reade v. Continental Trust Co., 49 App. Div. 400, 402; Tobin v. Manhattan Savings Inst., 6 Misc. Rep. 110; Moskowitz v. Hornberger, 20 id. 558.

Aside from the point just considered, there is no question in the ease 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.

Gildersleeve and Erl anger, JJ., concur.

Judgment affirmed, with costs.  