Graham v. Polizzi , 255 A.D. 1030 ( 1938 )

Judgment reversed on the law and a new trial granted, with costs to the appellants to abide the event. Memorandum: The proof supports the allegations of the complaint. No affirmative defense was pleaded or proved. Nevertheless we cannot grant judgment for the plaintiffs because the plaintiffs asked for damages, and made some proof of damages which are unliquidated. The proof of damages required submission to the jury. We must, therefore, order a new trial. All concur. (The judgment is for defendant in a replevin action.) Present — Sears, P. J., Crosby, Cunningham, Taylor and Dowling, JJ.