Whiting v. Derr
Appellate Division of the Supreme Court of the State of New York
Appeal by thé defendant, Ralph Derr, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of 'Kings bn the 28th day of November, 1906, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the defendant’s demurrer to the complaint.
1Opinion of the Court
Jenks, J.:
I think that the complaint may be sustained as for money advanced upon a contract upon, a disaffirmance or rescission thereof. (See Weaver v. Bentley, 1 Caines, 47; 2 Pars. Cont. [8th ed.] 794.) In Koerner v. Henn (8 App. Div. 604) the court, per Bradley, J., say: “It is, however, a general rule that an executory agreement, which is entire, may, upon a substantial breach by. one of the parties, be rescinded for that reason by the. .other when it can' be done in loto and the parties put in statu quo. (Weaver v. Bentley, 1 Caines, 47; Meade v. St. Louis M. Life Ins. Co., 51 How. Pr.…
2Cases cited8 opinions
- Andrews v. . DurantNew York Court of Appeals · 1854
- Chesapeake and Ohio Canal Company v. Knapp and OthersSupreme Court of the United States · 1835
- Raymond v. BearnardNew York Supreme Court · 1815
- Havens v. . PattersonNew York Court of Appeals · 1870
- Weaver v. BentleyNew York Supreme Court · 1803
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3Cited by4 opinions
- Edwards v. MillerSupreme Court of Oklahoma · 1924
- Shapiro v. BenensonAppellate Division of the Supreme Court of the State of New York · 1917
- Drake v. White Sewing Machine Co.Appellate Division of the Supreme Court of the State of New York · 1909
- Rosenwasser v. Blyn Shoes, Inc.New York Supreme Court · 1926