Gellert v. Dick

New York Court of Appeals

Gellert v. Dick

13 N.E.2d 603, 277 N.Y. 123, 1938 N.Y. LEXIS 961

CourtNew York Court of Appeals

DecidedMarch 8, 1938

StatusPublished

Cited by4 cases

This text of 13 N.E.2d 603 (Gellert v. Dick) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gellert v. Dick, 13 N.E.2d 603, 277 N.Y. 123, 1938 N.Y. LEXIS 961 (N.Y. 1938).

Pincite

Opinions

Finch, J.

The validity of this complaint depends on whether the plaintiff has pleaded a valid consideration. The complaint alleges a special agreement between the parties and the existence of a custom and usage to the same effect, which was known to both parties and in contemplation of which they had the dealings involved. *125 The position of the defendants is that only a past consideration was pleaded and that custom and usage can have no effect in overruling the doctrine that past consideration is inadequate in the absence of a prior request.

A reading of the complaint establishes that present' and not past consideration is alleged, and that, therefore, a valid and binding agreement is set forth. Paragraphs III and IV of the complaint allege performance by the plaintiff in that he discovered that certain bonds were available for sale and conveyed this information to the defendants. Paragraph V then states:

“ V. That it was agreed between the plaintiff and the defendants at the time of the conveying of said information * * * that in the event that said defendants * * * determined to purchase the said bonds * * * they would pay to the plaintiff a reasonable commission by reason and in consideration of the finding of the said bonds by plaintiff, and the conveying of the said information respecting said bonds by him to said defendants, said commission to be paid at the time of the purchase of the said bonds.”

The important words above are that the promise was made “ * * * at the time of the conveying of said information * * * and in consideration of * * * the conveying of the said information respecting said bonds by him to said defendants * * *.” This allegation, that performance and promise were contemporaneous, alleges present consideration. The allegation is not that the information was conveyed first and the agreement made subsequently. The bonds, it is true, had been found before this agreement was entered into, but this allegation may be treated as surplusage. The vital consideration was the conveying of the information as to their whereabouts. It is sufficient to make out a cause of action that a valid, present consideration, the giving of the information concerning the whereabouts of the bonds, is alleged.

*126 We are only dealing with the allegations of the pleadings and not with what the proof may show at the trial.

The order should be affirmed, with costs, and the question certified answered in the affirmative.

Free access — add to your briefcase to read the full text and ask questions with AI

Finch, J.

The validity of this complaint depends on whether the plaintiff has pleaded a valid consideration. The complaint alleges a special agreement between the parties and the existence of a custom and usage to the same effect, which was known to both parties and in contemplation of which they had the dealings involved. *125 The position of the defendants is that only a past consideration was pleaded and that custom and usage can have no effect in overruling the doctrine that past consideration is inadequate in the absence of a prior request.

A reading of the complaint establishes that present' and not past consideration is alleged, and that, therefore, a valid and binding agreement is set forth. Paragraphs III and IV of the complaint allege performance by the plaintiff in that he discovered that certain bonds were available for sale and conveyed this information to the defendants. Paragraph V then states:

“ V. That it was agreed between the plaintiff and the defendants at the time of the conveying of said information * * * that in the event that said defendants * * * determined to purchase the said bonds * * * they would pay to the plaintiff a reasonable commission by reason and in consideration of the finding of the said bonds by plaintiff, and the conveying of the said information respecting said bonds by him to said defendants, said commission to be paid at the time of the purchase of the said bonds.”

The important words above are that the promise was made “ * * * at the time of the conveying of said information * * * and in consideration of * * * the conveying of the said information respecting said bonds by him to said defendants * * *.” This allegation, that performance and promise were contemporaneous, alleges present consideration. The allegation is not that the information was conveyed first and the agreement made subsequently. The bonds, it is true, had been found before this agreement was entered into, but this allegation may be treated as surplusage. The vital consideration was the conveying of the information as to their whereabouts. It is sufficient to make out a cause of action that a valid, present consideration, the giving of the information concerning the whereabouts of the bonds, is alleged.

*126 We are only dealing with the allegations of the pleadings and not with what the proof may show at the trial.

The order should be affirmed, with costs, and the question certified answered in the affirmative.

Cite This Page — Counsel Stack

Bluebook (online)

13 N.E.2d 603, 277 N.Y. 123, 1938 N.Y. LEXIS 961, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gellert-v-dick-ny-1938.

Opinions

Related

Cite This Page — Counsel Stack