Buckley v. Zimmerman

Appellate Terms of the Supreme Court of New York

Buckley v. Zimmerman

32 Misc. 704, 65 N.Y.S. 512

CourtAppellate Terms of the Supreme Court of New York

DecidedJune 15, 1900

StatusPublished

This text of 32 Misc. 704 (Buckley v. Zimmerman) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Buckley v. Zimmerman, 32 Misc. 704, 65 N.Y.S. 512 (N.Y. Ct. App. 1900).

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Opinion

Per Curiam.

The complaint is for the use of a steam hod elevator. There is no evidence that shows or tends to show that the defendant Albert Saxe ever hired a hod elevator from plaintiff. It is true that one o-f the plaintiff’s witnesses testified that the defendant Saxe promised that he would keep from Zimmerman (the person to whom plaintiff had rented the hod elevator) out of his contract, and out of his extras, sufficient to pay plaintiff’s bill, but the original'indebtedness was Zimmerman’s, and even if the action had been brought on the theory that the defendant Saxe had promised to pay the debt of another, there being no consideration for such promise, plaintiff cannot recover. It was not necessary for defendant to plead the Statute of Frauds, because the complaint against him was not on his promise to pay the debt of another.

Judgment is reversed and a new trial ordered in the Municipal Court for the tenth district, with costs to the defendant Saxe, to abide the event.

Present: Truax, P. J., Scott and Dugro, JJ.

Judgment reversed and new trial ordered, with costs to defendant Saxe to abide event.

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Per Curiam.

The complaint is for the use of a steam hod elevator. There is no evidence that shows or tends to show that the defendant Albert Saxe ever hired a hod elevator from plaintiff. It is true that one o-f the plaintiff’s witnesses testified that the defendant Saxe promised that he would keep from Zimmerman (the person to whom plaintiff had rented the hod elevator) out of his contract, and out of his extras, sufficient to pay plaintiff’s bill, but the original'indebtedness was Zimmerman’s, and even if the action had been brought on the theory that the defendant Saxe had promised to pay the debt of another, there being no consideration for such promise, plaintiff cannot recover. It was not necessary for defendant to plead the Statute of Frauds, because the complaint against him was not on his promise to pay the debt of another.

Judgment is reversed and a new trial ordered in the Municipal Court for the tenth district, with costs to the defendant Saxe, to abide the event.

Present: Truax, P. J., Scott and Dugro, JJ.

Judgment reversed and new trial ordered, with costs to defendant Saxe to abide event.

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Bluebook (online)

32 Misc. 704, 65 N.Y.S. 512, Counsel Stack Legal Research, https://law.counselstack.com/opinion/buckley-v-zimmerman-nyappterm-1900.