Worthington Whitehouse, Inc. v. Tyler

Appellate Terms of the Supreme Court of New York

Worthington Whitehouse, Inc. v. Tyler

123 Misc. 534, 205 N.Y.S. 643, 1924 N.Y. Misc. LEXIS 977

CourtAppellate Terms of the Supreme Court of New York

DecidedJune 27, 1924

StatusPublished

This text of 123 Misc. 534 (Worthington Whitehouse, Inc. v. Tyler) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Worthington Whitehouse, Inc. v. Tyler, 123 Misc. 534, 205 N.Y.S. 643, 1924 N.Y. Misc. LEXIS 977 (N.Y. Ct. App. 1924).

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Opinion

Mitchell, J.

It was error to direct a verdict in plaintiff’s favor. Defendant’s testimony raised an issue of fact which should have been submitted to the jury. Defendant testified that the first price which was made to him was that mentioned in plaintiff’s letter (Plaintiff’s Exhibit 1) and that when asked if he would entertain the offer, defendant informed plaintiff’s representative that he had no authority to take back a mortgage; that the transaction would have to be cash; that if the title company did not object to the missing trustee and they approved of his authority, the con,[535]*535templated loan would be consummated; that the sale would depend upon the loan, and that he would not consider a contract until the loan was consummated. Defendant's letter is indicative of the position which defendant testified he took regarding the proposed sale. Defendant also testified that the title company turned down the title and would not make the loan because of the missing trustee. If the case had been submitted to the jury and it believed the above testimony of the defendant, it would have been warranted in returning a verdict in defendant’s favor.

The complaint was dismissed upon the trial as to the defendant in his capacity as executor and trustee, and the judgment should have contained a recital to that effect. While the notice of appearance of the defendant in his fiduciary capacity was not filed until the day of the trial, plaintiff’s counsel raised no question at the time of the trial as to the standing in court of the defendant in his said representative capacity. The latter actually appeared in court at the trial by attorney, and his attorney’s motion to dismiss the complaint was granted. The defendant, as executor and trustee, is entitled to judgment dismissing the complaint as to him, with costs.

Judgment and order reversed and judgment directed in favor of defendant, as executor and trustee, dismissing the complaint as against him, with costs, and a new trial ordered as to plaintiff’s claim against the defendant, individually, with thirty dollars costs to appellant to abide the event.

Gxjy and Gavegan, JJ., concur.

Judgment and order reversed and judgment directed dismissing complaint against defendant and new trial ordered.

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Mitchell, J.

It was error to direct a verdict in plaintiff’s favor. Defendant’s testimony raised an issue of fact which should have been submitted to the jury. Defendant testified that the first price which was made to him was that mentioned in plaintiff’s letter (Plaintiff’s Exhibit 1) and that when asked if he would entertain the offer, defendant informed plaintiff’s representative that he had no authority to take back a mortgage; that the transaction would have to be cash; that if the title company did not object to the missing trustee and they approved of his authority, the con,[535]*535templated loan would be consummated; that the sale would depend upon the loan, and that he would not consider a contract until the loan was consummated. Defendant's letter is indicative of the position which defendant testified he took regarding the proposed sale. Defendant also testified that the title company turned down the title and would not make the loan because of the missing trustee. If the case had been submitted to the jury and it believed the above testimony of the defendant, it would have been warranted in returning a verdict in defendant’s favor.

The complaint was dismissed upon the trial as to the defendant in his capacity as executor and trustee, and the judgment should have contained a recital to that effect. While the notice of appearance of the defendant in his fiduciary capacity was not filed until the day of the trial, plaintiff’s counsel raised no question at the time of the trial as to the standing in court of the defendant in his said representative capacity. The latter actually appeared in court at the trial by attorney, and his attorney’s motion to dismiss the complaint was granted. The defendant, as executor and trustee, is entitled to judgment dismissing the complaint as to him, with costs.

Judgment and order reversed and judgment directed in favor of defendant, as executor and trustee, dismissing the complaint as against him, with costs, and a new trial ordered as to plaintiff’s claim against the defendant, individually, with thirty dollars costs to appellant to abide the event.

Gxjy and Gavegan, JJ., concur.

Judgment and order reversed and judgment directed dismissing complaint against defendant and new trial ordered.

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Bluebook (online)

123 Misc. 534, 205 N.Y.S. 643, 1924 N.Y. Misc. LEXIS 977, Counsel Stack Legal Research, https://law.counselstack.com/opinion/worthington-whitehouse-inc-v-tyler-nyappterm-1924.