Heath Dry Gas Co. v. Hurd
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendants, Benjamin Hurd and another, from an interlocutory judgment of. the Supreme'Court in favor'of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 26th day of March, 1907, upon the decision of the court, rendered after a tidal at the Saratoga Special Term, sustaining the plaintiff’s demurrer to the first separate defense set forth in the defendants’ amended answer.
1Dissent
Cochrane, J. (dissenting):
I dissent. The contract of sale alleged in the complaint is executory. The express warranty, if any, alleged to have been broken is only such as the law implies. In Reed v. Randall (29 N. Y. 358, 362) it was said : “In legal effect, therefore, the agreement as to which the breach was alleged was the same as the law would imply in the absence of words of express contract. It would be established upon proof of a contract to sell and deliver the tobacco at a future time, and without proof of express words between the parties, and if express words were used between the…
2Cases cited6 opinions
- Reed v. . RandallNew York Court of Appeals · 1864
- Carleton v. . Lombard, Ayres Co.New York Court of Appeals · 1896
- Day v. . PoolNew York Court of Appeals · 1873
- Coplay Iron Co. (Ltd.) v. PopeNew York Court of Appeals · 1888
- Tompkins v. LambAppellate Division of the Supreme Court of the State of New York · 1907
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