Herrlich v. Hyman

Appellate Terms of the Supreme Court of New York

Herrlich v. Hyman

61 Misc. 606, 113 N.Y.S. 971

CourtAppellate Terms of the Supreme Court of New York

DecidedJanuary 15, 1909

StatusPublished

This text of 61 Misc. 606 (Herrlich v. Hyman) 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

Herrlich v. Hyman, 61 Misc. 606, 113 N.Y.S. 971 (N.Y. Ct. App. 1909).

Pincite

Opinion

Hendrick, J.

This is an appeal from an interlocutory judgment entered on a decision overruling the demurrer to the complaint. The demurrer was interposed on the ground that the complaint did not state facts sufficient to constitute a cause of action. The complaint in substance sets forth that one William J. Lunney died intestate on May 2, 1908, and that the defendants are his administrators, and that, pursuant to the instance and request of said intestate in his lifetime, the plaintiff on the 5th day of May, 1908 (three days after his death), performed certain work, labor and services and furnished certain material for and on behalf of said intestate of the value of $400, etc.

It is urged on behalf of the demurrants that no valid contract, as between the plaintiff and the defendants’ intestate, is set up in the complaint. I think that is so. Had the plaintiff alleged a contract entered into with the decedent during his lifetime in pursuance of which the work was done after his death, no question of the sufficiency of the complaint could have arisen. But the allegation is of a contract consummated after one of the parties had died. The request of Lunney in his lifetime was not a- contract but an offer. It could only become of binding effect when acted on or accepted by the plaintiff before its revocation. But here it was revoked by death before it could be accepted or acted on, and no binding contract was, therefore, ever made. The plaintiff claims that the action is based on a quantum meruit and not on an express contract, but the allegations are of services rendered for the defendants’ intestate after his death and not in his lifetime. He was not bound to pay for them at any time up to the moment of his death, and so his representatives cannot be held liable by reason of his liability.

It may be that a bilateral contract was actually executed between the plaintiff and the defendants’ intestate before his death; that is, there may have been a promise exchanged for [608]*608a promise. On the other hand the defendants may he held liable as administrators for the work done on an implied agreement to pay for it. But the complaint is not based on either'of such causes of actions, and upon its allegations it is clearly demurrable.

. Judgment reversed, with costs, and demurrer sustained, with leave to plaintiff to plead over on payment of costs of demurrer and costs of this appeal within six days.

Giegerich and Ford, JJ., concur.

Judgment reversed, with costs, and demurrer sustained, with leave to plead over on payment of costs of demurrer and of this appeal within six days.

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Hendrick, J.

This is an appeal from an interlocutory judgment entered on a decision overruling the demurrer to the complaint. The demurrer was interposed on the ground that the complaint did not state facts sufficient to constitute a cause of action. The complaint in substance sets forth that one William J. Lunney died intestate on May 2, 1908, and that the defendants are his administrators, and that, pursuant to the instance and request of said intestate in his lifetime, the plaintiff on the 5th day of May, 1908 (three days after his death), performed certain work, labor and services and furnished certain material for and on behalf of said intestate of the value of $400, etc.

It is urged on behalf of the demurrants that no valid contract, as between the plaintiff and the defendants’ intestate, is set up in the complaint. I think that is so. Had the plaintiff alleged a contract entered into with the decedent during his lifetime in pursuance of which the work was done after his death, no question of the sufficiency of the complaint could have arisen. But the allegation is of a contract consummated after one of the parties had died. The request of Lunney in his lifetime was not a- contract but an offer. It could only become of binding effect when acted on or accepted by the plaintiff before its revocation. But here it was revoked by death before it could be accepted or acted on, and no binding contract was, therefore, ever made. The plaintiff claims that the action is based on a quantum meruit and not on an express contract, but the allegations are of services rendered for the defendants’ intestate after his death and not in his lifetime. He was not bound to pay for them at any time up to the moment of his death, and so his representatives cannot be held liable by reason of his liability.

It may be that a bilateral contract was actually executed between the plaintiff and the defendants’ intestate before his death; that is, there may have been a promise exchanged for [608]*608a promise. On the other hand the defendants may he held liable as administrators for the work done on an implied agreement to pay for it. But the complaint is not based on either'of such causes of actions, and upon its allegations it is clearly demurrable.

. Judgment reversed, with costs, and demurrer sustained, with leave to plaintiff to plead over on payment of costs of demurrer and costs of this appeal within six days.

Giegerich and Ford, JJ., concur.

Judgment reversed, with costs, and demurrer sustained, with leave to plead over on payment of costs of demurrer and of this appeal within six days.

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Bluebook (online)

61 Misc. 606, 113 N.Y.S. 971, Counsel Stack Legal Research, https://law.counselstack.com/opinion/herrlich-v-hyman-nyappterm-1909.