Ephriam v. Kinstler

The learned trial justice rightly decided that there was no showing of an assignment to the plaintiff of the rents past due. We are of the opinion, however, that as that point had not been made upon the trial an opportunity should have been afforded the plaintiff of submitting proof that there was such an assignment. As the plaintiff alleges that such proof is available we are sending the case back for a new trial. The failure to file an exception to the decision was not jurisdictional, but procedural, and we permit an exception to be filed. (Termini v. Huth, 191 App. Div. 218; Lichtbach v. Kelbach, 186 N. Y. Supp. 126.)

Judgment reversed and a new trial ordered, with costs to abide the event.

All concur; present, Bijur, Mullan and Cotillo, JJ.