Nesbit v. Jencks
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendant, Francis M. Jencks, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 24th day of April, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of April, 1902, denying the defendant’s motion for a new trial made upon the minutes.
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Appeal by the defendant, Francis M. Jencks, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 24th day of April, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of April, 1902, denying the defendant’s motion for a new trial made upon the minutes. The complaint alleges that the plaintiff on or about September 19, 1900, agreed to sell to the firm of G-. A. Adamo & Co. certain fire proof floor arches to be used in the construction of the building then in…
1Opinion of the Court
Laughlin, J.:
The judgment must stand or fall upon the theory on which the issues were' tried and submitted to the jury. Although no reply was served, the allegations of the answer are deemed traversed or avoided, and the plaintiff was entitled to prove fraud in avoidance of the guaranty agreement. (Code Civ. Proc. § 522; Jackson v. Brown, 76 Hun, 41; Sullivan v. Traders' Ins. Co., 169 N. Y. 213; Bennett v. Edison Elec. Ill. Co., 26 App. Div. 363; affd., 164 N. Y. 131.) Whether the agreement of October sixteenth was made depended upon conflicting evidence which presented a fair question for…
2Cases cited5 opinions
- Bennett v. Edison Electric Illuminating Co.New York Court of Appeals · 1900
- Sullivan v. Traders' Insurance Co. of ChicagoNew York Court of Appeals · 1901
- Benedict v. DeshelAppellate Division of the Supreme Court of the State of New York · 1902
- Bennett v. Edison Electric Illuminating Co.Appellate Division of the Supreme Court of the State of New York · 1898
- Jackson v. BrownNew York Supreme Court · 1894
3Cited by2 opinions
- Delinsky v. BrodowAppellate Terms of the Supreme Court of New York · 1908
- Reilly v. ProvostAppellate Division of the Supreme Court of the State of New York · 1904