Marx v. Gross

2 Misc. 511

Opinion

Sedgwick, Oh. J.

The action was for damages for the nondelivery of goods agreed by defendants to be delivered to plaintiff.

The learned counsel for the appellants have argued on the appeal certain questions which were not presented on the trial and did not occasion any exception to the rulings of the referee. These were the effect of the Statute of Frauds in the case and whether the principal amount if due, assuming the damages to be unliquidated, bore interest, and also as of what time the damages were to be computed.

I am of opinion that the allegation of the complaint of the contract not being controverted by the answer, was to be taken as true for the purpose of the action. Code Civ. Proc. § 522; Fleischmann v. Stern, 90 N. Y. 110. For the purpose of determining the basis of the cause of action, the allegation of the answer of a contract of other terms or of a different character, has no function or effect.

The differences of fact between the parties have been fully and satisfactorily considered by the learned referee. The facts found by him were supported by evidence. The conclusions of law from the facts were correct.

Judgment affirmed, with costs.

Dugro and Gildersleeve, JJ., concur.

Judgment affirmed.