Shearwood v. Shearwood

New York Supreme Court

Shearwood v. Shearwood

34 N.Y.S. 1148, 96 N.Y. Sup. Ct. 610, 68 N.Y. St. Rep. 881

DecidedJuly 26, 1895

StatusPublished

This text of 34 N.Y.S. 1148 (Shearwood v. Shearwood) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Shearwood v. Shearwood, 34 N.Y.S. 1148, 96 N.Y. Sup. Ct. 610, 68 N.Y. St. Rep. 881 (N.Y. Super. Ct. 1895).

Pincite

Opinion

DYICMAN, J.

This is an appeal from a judgment in favor of the defendant, entered upon the dismissal of the complaint at the trial term, and from an order denying a motion for a new trial on the minutes of the court. The action was brought to recover the sum of $2,000, upon an allegation that in the year 1891 the defendant promised to give the plaintiff’s testator, Jacob B. Shearwood, the sum of $3,000 out •of the money received by her from her mother in consideration of services which he had performed for the defendant and for her mother prior to her death, and for services which he promised to perform, and did thereafter perform, and for other good and valuable considerations. The answer denied the promise, and the other material allegations in the complaint. The case was tried at the circuit before a jury, and at the close of the testimony on the part of the plaintiff the complaint was dismissed on the ground of failure to prove the promise upon which the action was based, and, further, because there was no consideration for such promise. The dismissal was right. The cause is destitute of proof of any promise to pay any specific sum, and the law will not imply a promise to .pay for the services on account of relationship of the parties. The judgment and order denying a new trial should be affirmed, with costs.

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DYICMAN, J.

This is an appeal from a judgment in favor of the defendant, entered upon the dismissal of the complaint at the trial term, and from an order denying a motion for a new trial on the minutes of the court. The action was brought to recover the sum of $2,000, upon an allegation that in the year 1891 the defendant promised to give the plaintiff’s testator, Jacob B. Shearwood, the sum of $3,000 out •of the money received by her from her mother in consideration of services which he had performed for the defendant and for her mother prior to her death, and for services which he promised to perform, and did thereafter perform, and for other good and valuable considerations. The answer denied the promise, and the other material allegations in the complaint. The case was tried at the circuit before a jury, and at the close of the testimony on the part of the plaintiff the complaint was dismissed on the ground of failure to prove the promise upon which the action was based, and, further, because there was no consideration for such promise. The dismissal was right. The cause is destitute of proof of any promise to pay any specific sum, and the law will not imply a promise to .pay for the services on account of relationship of the parties. The judgment and order denying a new trial should be affirmed, with costs.

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Bluebook (online)

34 N.Y.S. 1148, 96 N.Y. Sup. Ct. 610, 68 N.Y. St. Rep. 881, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shearwood-v-shearwood-nysupct-1895.