Mulderrig v. Burke

Appellate Terms of the Supreme Court of New York

Mulderrig v. Burke

24 Misc. 716, 53 N.Y.S. 1004

CourtAppellate Terms of the Supreme Court of New York

DecidedOctober 15, 1898

StatusPublished

Cited by1 cases

This text of 24 Misc. 716 (Mulderrig v. Burke) 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

Mulderrig v. Burke, 24 Misc. 716, 53 N.Y.S. 1004 (N.Y. Ct. App. 1898).

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Opinion

Beekman, P. J.

The memorandum in writing, signed by both parties, which expressed the terms upon which the plaintiff undertook the mason work he did for the defendants, states that the price to be paid was at the rate of five cents a foot. The plaintiff claims that the agreement was for five and one-half cents; that he could not read writing, and that when he signed the paper he supposed it truly expressed the arrangement which had been made for the larger sum. He is flatly contradicted by the witnesses for the defendants iwith respect to his version of the agreement. The alleged error in the written evidence of the contract being in dispute, and there being no proof tending to show that the plaintiff was in any way induced to refrain from examining the paper; or that any other- deceit of- like character had been practiced upon him, he must be held to the consequences of his own act, and be bound by the terms of the instrument which he admits that he signed. Any other conclusion than this would render written evidence of an agreement 'of little value and invite its impeachment by such testimony as has been given here whenever the interest of a party made it desirable to avoid it. It follows that the judgment rendered by the trial justice in favor of the plaintiff must be reversed.

Gildersleeve and Giegerich, JJ., concur.

Judgment reversed and a new trial ordered, with costs to the appellants to abide the event.

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Beekman, P. J.

The memorandum in writing, signed by both parties, which expressed the terms upon which the plaintiff undertook the mason work he did for the defendants, states that the price to be paid was at the rate of five cents a foot. The plaintiff claims that the agreement was for five and one-half cents; that he could not read writing, and that when he signed the paper he supposed it truly expressed the arrangement which had been made for the larger sum. He is flatly contradicted by the witnesses for the defendants iwith respect to his version of the agreement. The alleged error in the written evidence of the contract being in dispute, and there being no proof tending to show that the plaintiff was in any way induced to refrain from examining the paper; or that any other- deceit of- like character had been practiced upon him, he must be held to the consequences of his own act, and be bound by the terms of the instrument which he admits that he signed. Any other conclusion than this would render written evidence of an agreement 'of little value and invite its impeachment by such testimony as has been given here whenever the interest of a party made it desirable to avoid it. It follows that the judgment rendered by the trial justice in favor of the plaintiff must be reversed.

Gildersleeve and Giegerich, JJ., concur.

Judgment reversed and a new trial ordered, with costs to the appellants to abide the event.

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Bluebook (online)

24 Misc. 716, 53 N.Y.S. 1004, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mulderrig-v-burke-nyappterm-1898.

Opinion

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