Landau v. Wollman

City of New York Municipal Court

Landau v. Wollman

144 Misc. 541, 258 N.Y.S. 947, 1932 N.Y. Misc. LEXIS 1172

DecidedJuly 21, 1932

StatusPublished

This text of 144 Misc. 541 (Landau v. Wollman) is published on Counsel Stack Legal Research, covering City of New York Municipal Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Landau v. Wollman, 144 Misc. 541, 258 N.Y.S. 947, 1932 N.Y. Misc. LEXIS 1172 (N.Y. Super. Ct. 1932).

Pincite

Opinion

Carlin, J.

I hereby find and decide that after trial defendants are entitled to judgment against plaintiff dismissing his complaint on the merits. Had there been a sale of the stock on February 28, 1929, at 84|, the defendants’ confirmation slip, dated that day, might have worked an estoppel, but as it is conceded that no sale higher than 84J took place, on that date, the plaintiff cannot contend that the defendants could not show that the confirmation slip was • issued by mistake. Whether the case is regarded as one based [543]*543on contract, as the complaint alleges, or sounding in tort, the court is of the opinion that the plaintiff has not established his cause of action by a fair preponderance of the credible evidence.

The amendment of. defendants’ answer on trial to include plea of the Statute of Limitations was not prejudicial, as no such defense was considered by the court in arriving at its decision by reason of the fact that whether the case be regarded as being predicated on contract or based on tort, the Statute of Limitations, as a defense, is inapplicable, as the action was brought within the period allowed ,on either theory.

1 I order and adjudge that said defendants have judgment accordingly.

Mve days’ stay of execution.

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Carlin, J.

I hereby find and decide that after trial defendants are entitled to judgment against plaintiff dismissing his complaint on the merits. Had there been a sale of the stock on February 28, 1929, at 84|, the defendants’ confirmation slip, dated that day, might have worked an estoppel, but as it is conceded that no sale higher than 84J took place, on that date, the plaintiff cannot contend that the defendants could not show that the confirmation slip was • issued by mistake. Whether the case is regarded as one based [543]*543on contract, as the complaint alleges, or sounding in tort, the court is of the opinion that the plaintiff has not established his cause of action by a fair preponderance of the credible evidence.

The amendment of. defendants’ answer on trial to include plea of the Statute of Limitations was not prejudicial, as no such defense was considered by the court in arriving at its decision by reason of the fact that whether the case be regarded as being predicated on contract or based on tort, the Statute of Limitations, as a defense, is inapplicable, as the action was brought within the period allowed ,on either theory.

1 I order and adjudge that said defendants have judgment accordingly.

Mve days’ stay of execution.

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Bluebook (online)

144 Misc. 541, 258 N.Y.S. 947, 1932 N.Y. Misc. LEXIS 1172, Counsel Stack Legal Research, https://law.counselstack.com/opinion/landau-v-wollman-nynyccityct-1932.