Dealy v. Klapp
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendant, Edward C. Klapp, from a final judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Montgomery on the 12th day of September, 1921, upon the report of a referee appointed to take and state an account pursuant to an interlocutory judgment, also from said interlocutory judgment entered in said clerk’s office on the 31st day of August, 1921, on default, and also from an order entered in said clerk’s…
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Appeal by the defendant, Edward C. Klapp, from a final judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Montgomery on the 12th day of September, 1921, upon the report of a referee appointed to take and state an account pursuant to an interlocutory judgment, also from said interlocutory judgment entered in said clerk’s office on the 31st day of August, 1921, on default, and also from an order entered in said clerk’s office on the 9th day of August, 1921, granting plaintiff’s motion for judgment on the pleadings. On October 28, 1920,…
1Opinion of the Court
Cochrane, J.:
Judgment having been granted on the pleadings, the affirmative defense contained in the answer has been overruled as matter of law. In my opinion such defense presents a question of fact in support of which the defendant was at liberty to
*153present evidence. It is well-established law that ordinarily a party at his election may maintain an action in equity to compel the specific performance of a contract to convey real estate or an action at law to recover his damages against the party failing to perform and the rule is unchanged notwithstanding that the parties have provided in the…
2Cases cited6 opinions
- Diamond Match Co. v. . RoeberNew York Court of Appeals · 1887
- Brown v. Haff & LyonNew York Court of Chancery · 1835
- Baumann v. . PinckneyNew York Court of Appeals · 1890
- Crary v. . SmithNew York Court of Appeals · 1848
- Phoenix Ins. Co. v. . Continental Ins. Co.New York Court of Appeals · 1882
1 more not listed; retrieve them via the Exa API.
3Cited by3 opinions
- Dealy v. KlappAppellate Division of the Supreme Court of the State of New York · 1922
- Cohen v. Jonathan Levi Co.Appellate Division of the Supreme Court of the State of New York · 1934
- Cooley v. HearnAppellate Division of the Supreme Court of the State of New York · 1935