Lupean v. Brainard
Appellate Division of the Supreme Court of the State of New York
Appeal by the plaintiff, Charles Lupean, from a judgment of the County Court of Chautauqua county .'in favor of the defendant, entered in. the office of the clerk of the county of Chautauqua on the 10th day of July, 1896, upon a nonsuit granted by the court, and also from an order entered in said clerk’s office on the 25th day of January, 1897, denying the defendant’s motion for a new trial made upon a case containing exceptions.
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Appeal by the plaintiff, Charles Lupean, from a judgment of the County Court of Chautauqua county .'in favor of the defendant, entered in. the office of the clerk of the county of Chautauqua on the 10th day of July, 1896, upon a nonsuit granted by the court, and also from an order entered in said clerk’s office on the 25th day of January, 1897, denying the defendant’s motion for a new trial made upon a case containing exceptions. The complaint in the action set forth that the parties entered into a contract by the terms -of which the plaintiff was to work for the defendant for one year from…
1Opinion of the Court
Ward, J.:
Some of the earlier cases seem to hold that, if the answer contained a general denial of the contract alleged in the complaint, the plaintiff must establish a valid contract, and if lie gave evidence showing a contract within the Statute of Frauds the defendant was at liberty, under the general denial, to take, that objection, although it had not been affirmatively pleaded in the answer.
Upon this question there is some confusion, however, in the earlier cases, and it is unnecessary to review them.
It was said by Bradley, J., in Smith v. Slosson (89 Hun, 568 ; 35 H. Y. Supp. 548), that…
2Cases cited5 opinions
- Hamer v. . SidwayNew York Court of Appeals · 1891
- Bannatyne v. Florence Milling & Mining Co.New York Supreme Court · 1894
- Smith v. SlossonNew York Supreme Court · 1895
- Schultz v. CohenThe Superior Court of the City of New York and Buffalo · 1895
- Thelberg v. National Starch Manufacturing Co.Appellate Division of the Supreme Court of the State of New York · 1896
3Cited by2 opinions
- Dearing v. DashAppellate Division of the Supreme Court of the State of New York · 1898
- English v. Mound House Plaster Co.U.S. Circuit Court for the District of Nevada · 1910