Tousey v. . Hastings
New York Court of Appeals
Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 19,1908, reversing on the law and the facts a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and granting a new trial. This action was brought to compel the specific performance of an alleged oral agreement by the defendant’s testatrix to leave, upon her death, certain property to the plaintiff.
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Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 19,1908, reversing on the law and the facts a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and granting a new trial. This action was brought to compel the specific performance of an alleged oral agreement by the defendant’s testatrix to leave, upon her death, certain property to the plaintiff. The facts, so far as material, are stated in the opinion. The Appellate Division cannot create a question of fact merely by inserting in its…
1Opinion of the CourtVann, J.
This case adds another to the long list in which appeals to the Court of Appeals were ineffectual because the Appellate Division reversed the judgment of the Trial Term both on the facts and the law. We have frequently held, but it does not seem to be well understood, that there may be a question of fact when all the witnesses are worthy of belief and no witness contradicts another. Diverse inferences may be drawn from the narrative of a truthful witness and when the narration is of oral admissions made some time before and although the precise words are important there is no circumstance to…
2Cases cited4 opinions
- In Re the Accounting of TottenNew York Court of Appeals · 1904
- Hamlin v. . StevensNew York Court of Appeals · 1903
- Hirsch v. . JonesNew York Court of Appeals · 1908
- Van Slyck v. . WoodruffNew York Court of Appeals · 1908
3Cited by37 opinions
- State v. KociolekSupreme Court of New Jersey · 1957
- Foreman v. ForemanNew York Court of Appeals · 1929
- Ga Nun v. . PalmerNew York Court of Appeals · 1916
- Wallace v. . WallaceNew York Court of Appeals · 1915
- Kraus v. . BirnbaumNew York Court of Appeals · 1910
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