Bossert v. Striker

Appellate Division of the Supreme Court of New York

Bossert v. Striker

142 A.D. 5, 126 N.Y.S. 726, 1910 N.Y. App. Div. LEXIS 4177

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

DecidedDecember 30, 1910

StatusPublished

Cited by1 cases

This text of 142 A.D. 5 (Bossert v. Striker) 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

Bossert v. Striker, 142 A.D. 5, 126 N.Y.S. 726, 1910 N.Y. App. Div. LEXIS 4177 (N.Y. Ct. App. 1910).

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Opinion

Jenks, J. :

We think that the “second guarantee” may be regarded as an order upon the plaintiffs to furnish materials of the kind required by the contract of Winberg, but to be delivered in the name, i. e., to the estate of Charles W. Smith. Payment is promised, not only for the materials furnished, but for those to be furnished, and payment is guaranteed as before, i. e., as the work progresses. It is ‘true that the plaintiffs plead on a guarantee, but we may gather [8]*8from the complaint that the materials were to be' delivered at certain specified buildings (which it appears were the property of the estate), and, as we have said, the “ second guarantee ” indicates, that there was a direct order for delivery to the estate. We think, then, that the circumstances .admit a consideration that this Undertaking was original in its, character. (See Ward v. Hasbrouck, 169 N. Y. 407.) The action was properly brought against the defendant per- sonally. (New v. Nicoll, 12 Hun, 431; affd., 73 N. Y. 127, and authorities cited.)

The judgment is reversed and a new trial is granted, costs .to abide the event.

Woodward, Thomas and Carr, JJ., concurred; Hirschberg, P. J., dissented.

Judgment reversed and new trial granted, costs to abide the event.

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Jenks, J. :

We think that the “second guarantee” may be regarded as an order upon the plaintiffs to furnish materials of the kind required by the contract of Winberg, but to be delivered in the name, i. e., to the estate of Charles W. Smith. Payment is promised, not only for the materials furnished, but for those to be furnished, and payment is guaranteed as before, i. e., as the work progresses. It is ‘true that the plaintiffs plead on a guarantee, but we may gather [8]*8from the complaint that the materials were to be' delivered at certain specified buildings (which it appears were the property of the estate), and, as we have said, the “ second guarantee ” indicates, that there was a direct order for delivery to the estate. We think, then, that the circumstances .admit a consideration that this Undertaking was original in its, character. (See Ward v. Hasbrouck, 169 N. Y. 407.) The action was properly brought against the defendant per- sonally. (New v. Nicoll, 12 Hun, 431; affd., 73 N. Y. 127, and authorities cited.)

The judgment is reversed and a new trial is granted, costs .to abide the event.

Woodward, Thomas and Carr, JJ., concurred; Hirschberg, P. J., dissented.

Judgment reversed and new trial granted, costs to abide the event.

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Bluebook (online)

142 A.D. 5, 126 N.Y.S. 726, 1910 N.Y. App. Div. LEXIS 4177, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bossert-v-striker-nyappdiv-1910.

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