Whipple v. . Brown Brothers Co.
New York Court of Appeals
Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 24, 1915, affirming a judgment in favor of plaintiff entered upon a verdict. The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in receiving evidence tending to prove fraud. The action being for breach of contract it could not be changed into one for fraud.
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Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 24, 1915, affirming a judgment in favor of plaintiff entered upon a verdict. The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in receiving evidence tending to prove fraud. The action being for breach of contract it could not be changed into one for fraud. (Dalrymple v. Hillenbrand, 62 N. Y. 5; Stumpf v. Cohen, 78 Misc. Rep. 158; Tanenbaum v. Fed. Match Co., 189 N. Y. 75; Lindsay v. Mulqueen, 26 Hun, 485; Townsend v. G.…
1Opinion of the CourtCollin, J.
The action was to recover the damages sustained by Watson H. Whipple, the plaintiff’s testator, through the breach by the defendant of a contract between them. The complaint alleged the contract, its making and breach and the damages of the plaintiff, in amount $1,600. It did not disclose whether the contract was oral or written. The answer denied the contract and alleged another contract and performance of it by the defendant. It is, of course, true that the allegations in the answer of new matter are to be deemed controverted by the plaintiff. (Code of Civil Procedure, section 522.) The…
2Cases cited14 opinions
- Kirchner v. New Home Sewing MacHine Co.New York Court of Appeals · 1892
- Bliss v. New York Central & Hudson River RailroadMassachusetts Supreme Judicial Court · 1894
- Page v. . KrekeyNew York Court of Appeals · 1893
- O'Donnell v. Inhabitants of ClintonMassachusetts Supreme Judicial Court · 1888
- Trambly v. RicardMassachusetts Supreme Judicial Court · 1881
9 more not listed; retrieve them via the Exa API.
3Cited by39 opinions
- Pimpinello v. Swift & Co.New York Court of Appeals · 1930
- Susquehanna Steamship Co. v. A. O. Andersen & Co.New York Court of Appeals · 1925
- Robert S. Ohanian, Cross-Appellant v. Avis Rent a Car System, Inc., Cross-AppelleeCourt of Appeals for the Second Circuit · 1985
- Gilbert v. RothschildNew York Court of Appeals · 1939
- First National Bank v. FazzariNew York Court of Appeals · 1961
34 more not listed; retrieve them via the Exa API.