Rubin v. Budabin

Appellate Division of the Supreme Court of New York

Rubin v. Budabin

40 A.D.2d 690, 336 N.Y.S.2d 285, 1972 N.Y. App. Div. LEXIS 3795

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

DecidedOctober 10, 1972

StatusPublished

This text of 40 A.D.2d 690 (Rubin v. Budabin) 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

Rubin v. Budabin, 40 A.D.2d 690, 336 N.Y.S.2d 285, 1972 N.Y. App. Div. LEXIS 3795 (N.Y. Ct. App. 1972).

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Opinion

In an action to recover upon a written instrument described by the parties as a promissory note mad,e by defendants’ testator, defendants appeal from a judgment of the. Supreme Court, Nassau County, entered'-November 30, 1971 in favor of plaintiff, upon a jury verdict. [691]*691Judgment reversed, on the law, with costs, and complaint dismissed. In our view, the nature and extent of the past and future services allegedly performed by plaintiff for the decedent, her uncle, were insufficient as a matter of law to constitute consideration for the purported note. Clearly, the alleged “ services ” performed by plaintiff fall into the category of gratuitous acts rendered without expectation of payment or reimbursement (41 N. Y. Jur., Negotiable Instruments, § 171 et seq. and cases there cited). Under these circumstances, we do not feel it should have been left to the jury to determine whether or not such alleged services constituted consideration. If We were not dismissing the complaint, we would nevertheless reverse the judgment and grant a new trial for what we deem prejudicial errors in unduly restricting defendants’ cross-examination of plaintiff and for prejudicial statements by plaintiff’s attorney in his summation. Hopkins, Acting P. J., Martuscello, Shapiro, Christ and Brennan, JJ., concur.

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In an action to recover upon a written instrument described by the parties as a promissory note mad,e by defendants’ testator, defendants appeal from a judgment of the. Supreme Court, Nassau County, entered'-November 30, 1971 in favor of plaintiff, upon a jury verdict. [691]*691Judgment reversed, on the law, with costs, and complaint dismissed. In our view, the nature and extent of the past and future services allegedly performed by plaintiff for the decedent, her uncle, were insufficient as a matter of law to constitute consideration for the purported note. Clearly, the alleged “ services ” performed by plaintiff fall into the category of gratuitous acts rendered without expectation of payment or reimbursement (41 N. Y. Jur., Negotiable Instruments, § 171 et seq. and cases there cited). Under these circumstances, we do not feel it should have been left to the jury to determine whether or not such alleged services constituted consideration. If We were not dismissing the complaint, we would nevertheless reverse the judgment and grant a new trial for what we deem prejudicial errors in unduly restricting defendants’ cross-examination of plaintiff and for prejudicial statements by plaintiff’s attorney in his summation. Hopkins, Acting P. J., Martuscello, Shapiro, Christ and Brennan, JJ., concur.

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Bluebook (online)

40 A.D.2d 690, 336 N.Y.S.2d 285, 1972 N.Y. App. Div. LEXIS 3795, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rubin-v-budabin-nyappdiv-1972.