Esmond v. Seeley
Appellate Division of the Supreme Court of the State of New York
Appeal by the plaintiff, Ernest E. Esmond, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 14th day of May, 1897, upon the verdict of a jury rendered by direction of the court.
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Appeal by the plaintiff, Ernest E. Esmond, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 14th day of May, 1897, upon the verdict of a jury rendered by direction of the court. The complaint, which was vei’itied on May 27, 1894, alleges that in May, 1888, the plaintiff negotiated for one Mallory a sale to the defendants, who were copartners, of a tract of land in Mystic, Connecticut, for the sum of $100,000; that the said Mallory agreed to pay him for such services the sum of $10,000, and paid the same by…
1Opinion of the Court
O’Brien, J.:
The first question ¡presented is as to whether the plaintiff’s motion for judgment upon the pleadings made at the opening of the case should have been granted. In support of such motion the cases of Fleischmann v. Stern (90 N. Y. 110); Beard v. Tilghman (66 Hun, 16), and Douglass v. Phenix Ins. Co. (138 N. Y. 209) were urged upon the court below, and are brought to our attention as authority for the rule that an affirmative defense, though inconsistent with the allegations of the complaint, when not coupled with or accompanied by a denial of such allegations, raises no issue.…
2Cases cited3 opinions
- Douglass v. Phenix InsuranceNew York Court of Appeals · 1893
- Bagley v. . BoweNew York Court of Appeals · 1887
- Fleischmann v. . SternNew York Court of Appeals · 1882
3Cited by2 opinions
- Schillinger v. McGarryAppellate Terms of the Supreme Court of New York · 1899
- Crawford v. LugoffSupreme Court of Minnesota · 1928