Berman v. Standard Wood Heel Co.

Appellate Terms of the Supreme Court of New York

Berman v. Standard Wood Heel Co.

125 Misc. 894, 211 N.Y.S. 649, 1925 N.Y. Misc. LEXIS 999

Appellate Terms of the Supreme Court of New York·Decided January 31, 1925·Published

Opinion

Per Curiam:

Judgment and order unanimously reversed upon the law, with ten dollars costs to appellant, and motion denied, with ten dollars costs.

The sole question is whether the defense is sufficient upon its face, as the motion is for judgment upon the pleadings and not for a summary judgment. A pleading that alleges the making of a contract “ for- a valuable consideration ” sufficiently pleads the consideration. It is not necessary to state the nature or character of it. (California Packing Corporation v. Kelly Storage & Distributing Co., 228 N. Y. 49.) So it has been held that an allegation in a pleading that a party had “ legal title ” was good (Sultan of Turkey v. Tiryakian, 213 N. Y. 429, 435); also that something was “ duly ” performed. (Brownell v. Town of Greenwich, 114 N. Y. 518, 527; Youngs v. Perry, 42 App. Div. 247; Levy v. Cohen, 103 id. 195; Benedict v. Clarke, 139 id. 242; Maune v. Unity Press, 143 id. 94.) The fact that the date of the contract is not stated is immaterial. The pleading does say that it was made before the commencement of the action. This is sufficient. The defense is, therefore, not insufficient upon its face, and the motion should not have prevailed.

Present: Cropsey, Lazansky and MacCrate, JJ.

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Per Curiam:

Judgment and order unanimously reversed upon the law, with ten dollars costs to appellant, and motion denied, with ten dollars costs.

The sole question is whether the defense is sufficient upon its face, as the motion is for judgment upon the pleadings and not for a summary judgment. A pleading that alleges the making of a contract “ for- a valuable consideration ” sufficiently pleads the consideration. It is not necessary to state the nature or character of it. (California Packing Corporation v. Kelly Storage & Distributing Co., 228 N. Y. 49.) So it has been held that an allegation in a pleading that a party had “ legal title ” was good (Sultan of Turkey v. Tiryakian, 213 N. Y. 429, 435); also that something was “ duly ” performed. (Brownell v. Town of Greenwich, 114 N. Y. 518, 527; Youngs v. Perry, 42 App. Div. 247; Levy v. Cohen, 103 id. 195; Benedict v. Clarke, 139 id. 242; Maune v. Unity Press, 143 id. 94.) The fact that the date of the contract is not stated is immaterial. The pleading does say that it was made before the commencement of the action. This is sufficient. The defense is, therefore, not insufficient upon its face, and the motion should not have prevailed.

Present: Cropsey, Lazansky and MacCrate, JJ.

Berman v. Standard Wood Heel Co., 125 Misc. 894, 211 N.Y.S. 649, 1925 N.Y. Misc. LEXIS 999 (N.Y. Ct. App. 1925).

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Opinion

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