Price v. Walker

138 A.D. 85, 122 N.Y.S. 493, 1910 N.Y. App. Div. LEXIS 1466

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 22, 1910
• Status: Published

Opinions

Burr, J.:

On. the 27th day of August, 1909, an order was entered in this action directing judgment in favor of plaintiff upon the ground that defendant’s demurrer to the amended complaint was frivolous. From that order an appeal is taken to this court. The notice óf appeal also recites that it is taken; from the judgment entered in accordance therewith. This judgment was not entered until the 18tli day of October, 1909. In the meantime defendant moved for leave to answer the complaint, submitting a proposed amended ■ answer. This motion was denied,, and from the order denying such motion an- appeal is also taken. .

I agree with Mr. Justice Woodward that the. demurrer was frivolous. The'suggestion in appellant’s, brief that-the complaint contains no allegation that defendant refused to. enter iutq an enforciblé agreement to assign the bid, I think, is met by-the allegation of the complaint that defendant declined to assign the bid itself, and without the consent of plaintiff took á deed of said premises. I, therefore, vote to affirm the order directing judgment upon the demurrer.

I dissent from so much of the said opinion as holds that the order refusing leave to plead over was properly made. The proposed answer sets up a good défense. In effect the complaint alleges an agreement by defendant’s agent.. Defendant does not deny any information or belief as to whether his agent did make such a contract ; upon information and belief he alleges that he did not. This may be all that he could do, and, if true, it constitutes a defense. Conceding that the demurrer admits the legality of the written paper, if it is a contract, the answer denies that the written paper is a contract binding upon the defendant, because it was not executed by his authority. The accompanying affidavit not only does not contradict or discredit the statement in the- answer, but shows that the paper, which is ámbiguous - in form, and which without the other allegations of the complaint as to its meaning and effect might-not be enforcible, was not the true contract between the parties. The complaint alleges that the property was afterwards sold without plaintiff’s consent. The answer denies this. This would certainly raise a question as to the damages, for-plaintiff seeks to recover not only the money which she paid, but the loss of her bargain.

The order directing judgment upon defendant’s demurrer as frivolous should be affirmed. The order denying leave to defendant to plead over should be reversed, and the motion for leave to plead granted, provided that the answer be served within ten days after the entry of the order herein, the judgment entered to stand as security pending the trial of the issues in this action. Neither of the parties should have costs of the appeal against the other.