Baumgarten v. Lafayette National Bank

Appellate Division of the Supreme Court of New York

Baumgarten v. Lafayette National Bank

253 A.D. 916, 2 N.Y.S.2d 561, 1938 N.Y. App. Div. LEXIS 9252

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 28, 1938

StatusPublished

Cited by1 cases

This text of 253 A.D. 916 (Baumgarten v. Lafayette National Bank) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Baumgarten v. Lafayette National Bank, 253 A.D. 916, 2 N.Y.S.2d 561, 1938 N.Y. App. Div. LEXIS 9252 (N.Y. Ct. App. 1938).

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Opinion

Judgment entered upon order dismissing plaintiff’s complaint at the close of the plaintiff’s case in an action for services claimed to have been performed by the plaintiff for the defendant’s intestate reversed on the law, and a new trial granted, with costs, payable out of the estate, to the appellant to abide the event. In our opinion there were questions of fact that should have been submitted to the jury. (Kraus v. Birnbaum,, 200 N. Y. 130.) There was proof of an offer of employment and of performance of the duties prescribed in the offer. From this the jury might infer an acceptance of the offer. Under such circumstances, the law presumes a promise to pay the reasonable value by the person benefited. (Leahy v. Campbell, 70 App. Div. 127; McKeon v. Van Slyck, 223 N. Y. 392.) The entries in the books of account belonging to the defendant’s intestate, which were made by the plaintiff, are competent to show the nature of the services performed. However, such books were not sufficiently identified as being the account books of the defendant’s intestate, but such proof may be furnished upon another trial. Lazansky, P. J., Carswell, Davis, Adel and Close, JJ., concur. ' ,*j

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Judgment entered upon order dismissing plaintiff’s complaint at the close of the plaintiff’s case in an action for services claimed to have been performed by the plaintiff for the defendant’s intestate reversed on the law, and a new trial granted, with costs, payable out of the estate, to the appellant to abide the event. In our opinion there were questions of fact that should have been submitted to the jury. (Kraus v. Birnbaum,, 200 N. Y. 130.) There was proof of an offer of employment and of performance of the duties prescribed in the offer. From this the jury might infer an acceptance of the offer. Under such circumstances, the law presumes a promise to pay the reasonable value by the person benefited. (Leahy v. Campbell, 70 App. Div. 127; McKeon v. Van Slyck, 223 N. Y. 392.) The entries in the books of account belonging to the defendant’s intestate, which were made by the plaintiff, are competent to show the nature of the services performed. However, such books were not sufficiently identified as being the account books of the defendant’s intestate, but such proof may be furnished upon another trial. Lazansky, P. J., Carswell, Davis, Adel and Close, JJ., concur. ' ,*j

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Bluebook (online)

253 A.D. 916, 2 N.Y.S.2d 561, 1938 N.Y. App. Div. LEXIS 9252, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baumgarten-v-lafayette-national-bank-nyappdiv-1938.

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