Waite v. Barry
New York Supreme Court
Error from the Kings common pleas. Barry declared against Waite in indebitatus assumpsit for $500, upon and by virtue of an award made by three individuals, in pursuance of a submission to them, by which the parties agreed to refer to |jje arbitrators “ the subject of a difference between them respecting the one eighth part of a lottery ticket, and the prize drawn thereunto, on the seventh day of April, 1830, in the city of New-York,” and bound themselves, each to the other,…
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Error from the Kings common pleas. Barry declared against Waite in indebitatus assumpsit for $500, upon and by virtue of an award made by three individuals, in pursuance of a submission to them, by which the parties agreed to refer to |jje arbitrators “ the subject of a difference between them respecting the one eighth part of a lottery ticket, and the prize drawn thereunto, on the seventh day of April, 1830, in the city of New-York,” and bound themselves, each to the other, in the sum of $250, to abide by the disposition which the arbitrators should make of the subject. The plaintiff alleged…
1Opinion of the Court
By the Court,
Sutherland, J,
The first objection taken to the count is, that it states the indebtedness and the as-. sumpsit both at $500, while the award, as set forth in the *379body of the count, is only for one eighth of $2000, after deducting the usual per centage, which is averred to have been fifteen per cent, and also the sum of $21,25, already paid, leaving the amount due, under this award, less than $200. The count in this as well as in other respects is unskilfully drawn ; but this defect is one merely of form, and not of substance. In assumpsit, or even in debt on simple contract, the…
2Cases cited1 opinion
- M'Kinstry v. SolomonsNew York Supreme Court · 1806
3Cited by16 opinions
- Remsen v. . BeekmanNew York Court of Appeals · 1862
- Herbst v. . HagenaersNew York Court of Appeals · 1893
- Ingraham v. WhitmoreIllinois Supreme Court · 1874
- Leslie v. LeslieNew Jersey Court of Chancery · 1892
- Baldwin v. MosesMassachusetts Supreme Judicial Court · 1946
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