Scholey v. . Mumford

64 N.Y. 521, 1876 N.Y. LEXIS 100

• Court: New York Court of Appeals
• Decided: April 4, 1876
• Status: Published

Opinion

Rapallo, J.

After having given due consideration to the argument of the learned counsel for the appellant as to the construction of the answer, we remain of the opinion that it admits that the payment of the amount stated in the account rendered for commissions and advances, was required as a condition for the delivery of the bonds to the plaintiff. The offer to prove that the defendants never imposed as a condition for the surrender of the bonds the payment of any money by the plaintiff, was therefore properly rejected.

But the answer contains the further allegation that the account of the commissions and advances claimed by the defendants, was delivered to and examined by the plaintiff and admitted to be correct. This allegation the defendants offered to prove, and the offer was rejected. The complaint averred that among the commissions claimed was the sum of $474.77, being one-half per cent on the value of the bonds; that the claim was unjust and was disputed by the plaintiff. This was a necessary averment to show that the payment was involuntary, and it was expressly denied by the answer. On the first trial as well as upon the last, evidence was adduced by the plaintiff in support of the allegation that he always disputed the claim for these commissions. This was one of the issues in the ease, and we think the court erred in refusing’ to permit the defendants to introduce evidence bearing upon it.

We have examined the other exceptions taken and find no error in the rulings of the court, save in the respect before mentioned. But if the appellant desires a new trial upon the issue whether the claim for these commissions was disputed or admitted by the plaintiff, she is entitled to it.

The judgment should be reversed and new a trial ordered, costs to abide the event.

All concur.

Judgment reversed.