Fisher v. Zimmer

Appellate Division of the Supreme Court of New York

Fisher v. Zimmer

286 A.D. 1129, 146 N.Y.S.2d 170, 1955 N.Y. App. Div. LEXIS 5389

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

DecidedNovember 16, 1955

StatusPublished

Cited by2 cases

This text of 286 A.D. 1129 (Fisher v. Zimmer) 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

Fisher v. Zimmer, 286 A.D. 1129, 146 N.Y.S.2d 170, 1955 N.Y. App. Div. LEXIS 5389 (N.Y. Ct. App. 1955).

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Opinion

Foster, P. J., Bergan, Halpern and Zeller, JJ., concur; Coon, J., dissents in the following memorandum: I dissent and vote to reverse the judgment for defendants on their counterclaim and to dismiss the counterclaim. The defendants purchased for a lump sum the entire farming operation of the plaintiff, including the farm, stock, crops and tools. No price per acre was mentioned. The boundaries of the farm were shown to defendants correctly. Defendant, Carl R. Zimmer, spent nearly an entire day examining the premises and looking at the fields which made up the premises. He received exactly what he saw, and made no complaint about a shortage in acreage until the shortage was called to his attention about four years later. While defendants testified that plaintiff told them the farm contained approximately 101 acres (actually it contained 88% acres), they subsequently signed a written contract which identified the farm but did not specify the number of acres. Concededly there was no intentional fraud. I think this is a classic example of a bulk sale of the premises and personal property, as viewed, and that an allowance for deficiency in quantity was not warranted. (Johnson v. Taber, 10 N. Y. 319; Hunt v. Wall, 211 App. Div. 856, affd. 240 N. Y. 696; Moffett v. Jaffe, 132 App. Div. 7; Ireland v. Baylis, 188 App. Div. 981.)

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Foster, P. J., Bergan, Halpern and Zeller, JJ., concur; Coon, J., dissents in the following memorandum: I dissent and vote to reverse the judgment for defendants on their counterclaim and to dismiss the counterclaim. The defendants purchased for a lump sum the entire farming operation of the plaintiff, including the farm, stock, crops and tools. No price per acre was mentioned. The boundaries of the farm were shown to defendants correctly. Defendant, Carl R. Zimmer, spent nearly an entire day examining the premises and looking at the fields which made up the premises. He received exactly what he saw, and made no complaint about a shortage in acreage until the shortage was called to his attention about four years later. While defendants testified that plaintiff told them the farm contained approximately 101 acres (actually it contained 88% acres), they subsequently signed a written contract which identified the farm but did not specify the number of acres. Concededly there was no intentional fraud. I think this is a classic example of a bulk sale of the premises and personal property, as viewed, and that an allowance for deficiency in quantity was not warranted. (Johnson v. Taber, 10 N. Y. 319; Hunt v. Wall, 211 App. Div. 856, affd. 240 N. Y. 696; Moffett v. Jaffe, 132 App. Div. 7; Ireland v. Baylis, 188 App. Div. 981.)

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Bluebook (online)

286 A.D. 1129, 146 N.Y.S.2d 170, 1955 N.Y. App. Div. LEXIS 5389, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fisher-v-zimmer-nyappdiv-1955.

Opinion

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