Zoller v. Kellogg
New York Supreme Court
Appeal from judgment on report of- referee. Action by Abram P. Zoller against Dayton S. Kellogg for breach of contract. At the trial before a referee plaintiff was permitted' to amend the complaint by demanding specific performance of the contract. From a judgment in plaintiff’s favor entered on the referee’s report, defendant appeals. Reversed.
1Opinion of the CourtMayham, P. J.
The original complaint in this action was for an alleged breach of contract set out in the complaint, and asked to recover damages for such breach. The original answer was a denial, and also an alleged performance of the contract. The issue thus framed was duly referred by consent and stipulation of the parties to a referee to hear and determine. On the appearance before the referee for the trial *227of the action the attorneys for the plaintiff moved to amend his complaint so as to change the action from one at law to recover damages to one in equity to compel a specific performance of the…
2Cases cited2 opinions
- Price v. . BrownNew York Court of Appeals · 1885
- Sleeman v. HotchkissNew York Supreme Court · 1891
3Cited by3 opinions
- Byrne v. McKeachieSouth Dakota Supreme Court · 1912
- Block v. Third Avenue RailroadAppellate Division of the Supreme Court of the State of New York · 1901
- Block v. Third Avenue RailroadAppellate Division of the Supreme Court of the State of New York · 1901