Gardiner v. Schwab

5 Citing cases

  1. R.L. Co. v. S. P.P. Co.

    31 N.E. 1018 (N.Y. 1892)   Cited 47 times
    In Rochester Lantern Co. v. Stiles Parker Press Co., 135 N.Y. 209, 31 N.E. 1018, one K. entered into a contract with the Stiles Parker Press Company by which it agreed to make and deliver to him ties to be used in the manufacture of lanterns, in which business K. proposed to engage, but was not then engaged. It did not appear that he contemplated doing so until the ties were furnished. The Rochester Lantern Company was subsequently incorporated; K, assigning the contract to it.

    In Murray v. Marshall ( 94 N.Y. 617), Judge FINCH adopted the obiter dictum contained in Kellogg v. Thompson, without referring to the case of Stoddard v. Whiting, and apparently without having his attention called to it; but his conclusion was finally reached by taking the facts as they had been actually found at the trial term. In Gardiner v. Schwab ( 110 N.Y. 650), Judge GRAY said: "As the case presented here does not contain the evidence given upon the trial, the correctness of the conclusions of law made by the referee is alone the subject for review. If they are sustained by the findings, the judgment must be sustained. We are only concerned with the legal effect of the facts as found.

  2. Berger et al. v. Varrelmann

    27 N.E. 1065 (N.Y. 1891)   Cited 16 times
    In Berger v. Varrelmann (127 N.Y. 281), where a debtor confessed judgment in favor of a creditor in contemplation of making an assignment for the benefit of his creditors, the confession of judgment having been a mere instrumentality employed to give preference to a particular creditor in excess of the limitation of the statute and the creditor having had knowledge of the fact, and the purposes of the confession, the Second Division held that it was void under the statute of 1887.

    "Where the evidence given on a trial is not contained in the case on appeal to this court it must be assumed that the facts proved were sufficient to sustain the findings, and also to sustain any additional findings required to support the conclusions of law not in conflict with the affirmative facts found." ( Gardiner v. Schawb, 110 N.Y. 650; Murray v. Marshall, 94 id. 611, 617; Reese v. Boese, Id. 623; Kellogg v. Thompson, 66 id. 88; First Nat. Bank v. Wood, 45 Hun, 413; Bond v. Bond, 51 id. 507.) An assumption that George E. Varrelmann knew that the judgment debtors contemplated a general assignment is not in conflict with any of the affirmative facts found, nor is it in conflict with any facts which the court refused to find.

  3. Hotchkin v. T.N. Bank

    127 N.Y. 329 (N.Y. 1891)   Cited 18 times

    He refused to find, upon defendant's request, that the plaintiff did not rely upon the representations in selling the property in question and he is presumed, in support of his other findings, to have found the converse of that proposition, and that the sales in the fall were induced by the representations in the spring. ( Gardiner v. Schwab, 110 N.Y. 650.) It seems to me that the weight of evidence supports the findings of the referee and demonstrates that Folsom was guilty of fraud by false representation, as well as by fraudulent concealment.

  4. Hydraulic Power Co. v. Pettebone-Cataract P. Co.

    194 App. Div. 819 (N.Y. App. Div. 1921)   Cited 9 times

    The conclusion here reached is supported by former decisions and reasoning in the opinions of the appellate courts. ( Gormerly v. McGlynn, 84 N.Y. 284; Palmer v. Phenix Ins. Co., 22 Hun, 224; Gardiner v. Schwab, 34 id. 582; Sisson v. Cummings, 35 id. 22; Dann v. Palmer, 151 App. Div. 151; 206 N.Y. 678.) The order should, therefore, be affirmed, with ten dollars costs and disbursements.

  5. Knickerbocker v. Robinson

    83 App. Div. 614 (N.Y. App. Div. 1903)

    In these circumstances we think it must be assumed that the proceedings at the trial and the facts proven were such as to sustain the findings of the learned trial court; and if the conclusions of law are not in conflict with the facts thus found, as clearly they are not, we do not see that any other or inconsistent fact alleged in the complaint, even when admitted in the answer, is available to the appellant as a reason for reversing the judgment. ( Gardiner v. Schwab, 110 N.Y. 650; Murray v. Marshall, 94 id. 611, 617; Kellogg v. Thompson, 66 id. 88.) Our consideration of the case presented by this appeal has thus far been based upon the assumption that the execution of the contract referred to in the complaint is admitted by the answers; but that such is the fact is not altogether certain for the contract which is annexed to and made a part of the answers differs in some essential particulars from the one referred to in the complaint, a circumstance to which we have already called attention; and it is not improbable that the court based its finding and conclusion to the effect that no contract was entered into between the parties, upon the fact that Dunning, who by the terms of the agreement was to have been a party thereto, never executed the same.