Evans v. Cox , 140 N.Y.S.2d 314 ( 1955 )

Determination of the Appellate Term unanimously modified and a new trial ordered as to the first cause of action set forth in the complaint and, as so modified, affirmed, with $20 costs and disbursements to the appellant. The second cause of action should not have been dismissed by the Appellate Term upon the merits but the dismissal was proper because the cause was barred by the Statute of Limitations. An issue of fact was presented upon the trial as to the liability of one or both defendants under the first cause of action. We are prevented from reinstating the judgment of the Municipal Court, however, because no findings were made and the decision awards a lump sum to the plaintiff. It is impossible to determine whether the award was made upon the first or second causes of action or both. Settle order on notice. Present — Peek, P. J., Cohn, Breitel, Bastow and Rabin, JJ.