Wolf v. Herrman

Appellate Terms of the Supreme Court of New York

Wolf v. Herrman

88 N.Y.S. 1120

Appellate Terms of the Supreme Court of New York·Decided May 5, 1904·Published

Opinion

PER CURIAM.

Had the defense of the statute of frauds been pleaded or raised at the trial, the plaintiff’s recovery would have been limited to $50; and, in view of the tender of that amount before suit brought and its subsequent payment into court, the judgment should have gone for the defendant. In the absence of such a plea, the justice was warranted in awarding $75 to the plaintiff; but the judgment in his favor should have been in the sum of $25, as the $50 on deposit awaited his order. Judgment modified, by reducing it to $25 and costs, and, as modified, affirmed, without costs.

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PER CURIAM.

Had the defense of the statute of frauds been pleaded or raised at the trial, the plaintiff’s recovery would have been limited to $50; and, in view of the tender of that amount before suit brought and its subsequent payment into court, the judgment should have gone for the defendant. In the absence of such a plea, the justice was warranted in awarding $75 to the plaintiff; but the judgment in his favor should have been in the sum of $25, as the $50 on deposit awaited his order. Judgment modified, by reducing it to $25 and costs, and, as modified, affirmed, without costs.

Wolf v. Herrman, 88 N.Y.S. 1120 (N.Y. Ct. App. 1904).

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