Miller v. Smerkins

Judgment reversed on the law and the facts and a new trial granted, costs to the appellant to abide the event. In our opinion, the plaintiff’s proofs are sufficient to show that H. S. Smerkins, Inc., the judgment debtor, was in business at 420 Forty-seventh avenue, Long Island City, in 1933, and that it, and not Smerkins as an individual, sold the business to'the Hesco Waterproof Products Corporation. Findings inconsistent with this decision are reversed. Lazansky, P. J., Hagarty, Carswell and Tompkins, JJ., concur; Kapper, J., dissents and votes to affirm. Settle order on notice.