Schelberger v. Schelberg

Appellate Division of the Supreme Court of New York

Schelberger v. Schelberg

264 A.D. 870, 35 N.Y.S.2d 516, 1942 N.Y. App. Div. LEXIS 5186

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

DecidedJune 8, 1942

StatusPublished

This text of 264 A.D. 870 (Schelberger v. Schelberg) 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

Schelberger v. Schelberg, 264 A.D. 870, 35 N.Y.S.2d 516, 1942 N.Y. App. Div. LEXIS 5186 (N.Y. Ct. App. 1942).

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Opinion

Defendants in an action for money only appeal from so much of an order as denies their motion for judgment on the pleadings dismissing the complaint on the ground that it fails to state a cause of action. Order, in so far as appealed from, affirmed, with' ten dollars costs and disbursements. Issues are raised here which may not be disposed of summarily, such as whether there is not implied in the writing signed by the decedent a promise to pay the debt to secure which the second mortgage was to be given (Simon v. Etgen, 213 N. Y. 589, 594, 595; Wood v. Duff-Gordon, 222 id. 88, 91), and whether the payment of interest on the debt by the decedent for two years was not such a practical construction of the writing as to be of great probative force in determining its meaning. (Woolsey v. Funke, 121 N. Y. 87, 92; Nicoll v. Sands, 131 id. 19, 24.) Lazansky, P. J., Carswell, Johnston, Taylor and Close, JJ., concur,

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Defendants in an action for money only appeal from so much of an order as denies their motion for judgment on the pleadings dismissing the complaint on the ground that it fails to state a cause of action. Order, in so far as appealed from, affirmed, with' ten dollars costs and disbursements. Issues are raised here which may not be disposed of summarily, such as whether there is not implied in the writing signed by the decedent a promise to pay the debt to secure which the second mortgage was to be given (Simon v. Etgen, 213 N. Y. 589, 594, 595; Wood v. Duff-Gordon, 222 id. 88, 91), and whether the payment of interest on the debt by the decedent for two years was not such a practical construction of the writing as to be of great probative force in determining its meaning. (Woolsey v. Funke, 121 N. Y. 87, 92; Nicoll v. Sands, 131 id. 19, 24.) Lazansky, P. J., Carswell, Johnston, Taylor and Close, JJ., concur,

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Bluebook (online)

264 A.D. 870, 35 N.Y.S.2d 516, 1942 N.Y. App. Div. LEXIS 5186, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schelberger-v-schelberg-nyappdiv-1942.

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