Rose v. Armstrong

Appellate Division of the Supreme Court of New York

Rose v. Armstrong

120 A.D. 635, 105 N.Y.S. 541, 1907 N.Y. App. Div. LEXIS 1273

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 25, 1907

StatusPublished

Cited by1 cases

This text of 120 A.D. 635 (Rose v. Armstrong) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Rose v. Armstrong, 120 A.D. 635, 105 N.Y.S. 541, 1907 N.Y. App. Div. LEXIS 1273 (N.Y. Ct. App. 1907).

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Opinion

Kellogg, J.:

The corhplaint alleged an agreement by which if the plaintiff: would let the intestate have her pension money from time to., time to be used in his business so long as. he lived, such advances would be repaid at his death out of his estate; that she fully carried' out the agreement and loaned- and paid- over to him all of. the pension money received by her, amounting to'$4,000. The evidence showed, quite clearly-that the plaintiff had- no income excepther pension $ that she.' was living as housekeeper- with .the intestate and was a: woman quite advanced in years, and shows- several advances of money to him, some of which Were identified as' pension moneys and others were' not so- identified, and frequent admissions by the intestate that he owed the plaintiff a large sum, stated from $2,00,0 •to $3,000, A nonsuit was granted and the complaint dismissed, presumably upon the theory that it was not shown that the moneys which the plaintiff loaned and advanced to the intestate were pension ■ moneys. The evidence tends quite clearly to show an indebtedness. to the plaintiff for moneys loaned, and it is not necessary to deter-, mine whether the'plaintiff under her complaint must make it appear that such moneys were pension moneys, for if it is assumed that, such proof must be made the fact that the plaintiff had no other property or source of income was evidence with the other facts to be considered upon that subject. We think the court took too' technical a- view, of the pleadings and the evidence, and under the complaint it was not necessary .to prove that all the. moneys which the plaintiff advanced under the contract were .actually pension, moneys. Any other moneys advanced would f urnish the "same liability, and the real question is whether the, plaintiff loaned and advanced the sums as claimed by her.

■ The judgment should, therefore, be reversed and a new trial granted, -with costs to the appellant to abide the event.

All concurred.

Judgment and order reversed and new trial granted, with costs ' to appellant, to abide event.

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Kellogg, J.:

The corhplaint alleged an agreement by which if the plaintiff: would let the intestate have her pension money from time to., time to be used in his business so long as. he lived, such advances would be repaid at his death out of his estate; that she fully carried' out the agreement and loaned- and paid- over to him all of. the pension money received by her, amounting to'$4,000. The evidence showed, quite clearly-that the plaintiff had- no income excepther pension $ that she.' was living as housekeeper- with .the intestate and was a: woman quite advanced in years, and shows- several advances of money to him, some of which Were identified as' pension moneys and others were' not so- identified, and frequent admissions by the intestate that he owed the plaintiff a large sum, stated from $2,00,0 •to $3,000, A nonsuit was granted and the complaint dismissed, presumably upon the theory that it was not shown that the moneys which the plaintiff loaned and advanced to the intestate were pension ■ moneys. The evidence tends quite clearly to show an indebtedness. to the plaintiff for moneys loaned, and it is not necessary to deter-, mine whether the'plaintiff under her complaint must make it appear that such moneys were pension moneys, for if it is assumed that, such proof must be made the fact that the plaintiff had no other property or source of income was evidence with the other facts to be considered upon that subject. We think the court took too' technical a- view, of the pleadings and the evidence, and under the complaint it was not necessary .to prove that all the. moneys which the plaintiff advanced under the contract were .actually pension, moneys. Any other moneys advanced would f urnish the "same liability, and the real question is whether the, plaintiff loaned and advanced the sums as claimed by her.

■ The judgment should, therefore, be reversed and a new trial granted, -with costs to the appellant to abide the event.

All concurred.

Judgment and order reversed and new trial granted, with costs ' to appellant, to abide event.

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Bluebook (online)

120 A.D. 635, 105 N.Y.S. 541, 1907 N.Y. App. Div. LEXIS 1273, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rose-v-armstrong-nyappdiv-1907.

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