Hamilton v. Smith

141 N.Y.S. 577

• Court: Appellate Terms of the Supreme Court of New York
• Decided: May 8, 1913
• Status: Published

Opinion

GERARD, J.

This action was brought by plaintiff to recover the sum of $50 alleged to be due under the terms of a certain contract which read as follows:

“This is to certify that I agree to pay Charles Hamilton $25 in advance on the 1st of each month for six months, commencing from August 1, 1912, to January 31/1913, with privilege of renewal for six months from and including February 1, 1913, for the privilege of taking stone from dump at St. Nicholas avenue. No other permits to be granted by Mr. Hamilton, only to me, during the time specified.

“[Signed] Lewis Smith, 162 Sherman Avenue.”

[1] The action was brought to recover two installments under this contract. Appellant contends that the contract is invalid, as lacking mutuality, too indefinite, and without consideration. It is evident on the face of this contract that none of these objections have any merit whatever.

[2] The appellant also contends that the dump referred to did not belong to the plaintiff, and the plaintiff did not have the right to use it, or allow any one else to use it. On the cross-examination of plaintiff, certain questions asked by defendant’s counsel, tending to show that the plaintiff did not own the dump or have any control of it were ruled out. These questions should have been allowed, and because of the nonallowance of these questions the judgment must be reversed-

Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.