Marrer v. Marrer

Full title: IRMA MARRER, Respondent, v . ARNOLD MARRER and HUGO KUHN, Appellants

Court: Supreme Court, Appellate Term

Date published: Apr 1, 1908

58 Misc. 526 (N.Y. App. Term 1908)

109 N.Y.S. 735

Opinion

April, 1908.

Andrew I. Albert, for appellants.

Samuel Hoffman, for respondent.

Per Curiam.

This action was brought upon a written guaranty. The pleadings were oral. The facts are peculiar and the record meagre. It appears that, differences having arisen between the plaintiff and her husband, an agreement was prepared between the plaintiff's husband, the plaintiff and one Ignatz Spiegel, who is referred to therein as trustee. Under the terms of the proposed agreement, the plaintiff and her husband were to continue to live apart from one another; and the plaintiff's husband agreed to pay her seven dollars per week for her support and the support of her child. The proposed agreement further provides that an action may be brought for the recovery of the amount therein specified, either by the trustee or by the plaintiff. The proposed agreement was signed only by the plaintiff's husband. Indorsed upon the agreement was the following:

"For and in consideration of the sum of one dollar to me in hand paid, receipt whereof is hereby acknowledged, I, Hugo Kuhn, hereby guarantee the faithful performance of all the terms of the written agreement on the part of Arnold Marrer.

"Dated, N.Y., June 5 th, 1907.

"HUGO KUHN.

"Witness, SAMUEL A. BERGER."

It is upon this agreement of guaranty that the present action is brought. The proof before the court showed, merely, that the plaintiff's husband had made her no payment since January 15, 1906, and that the defendant signed the guaranty without reading it and without any knowledge of its provisions. Upon the trial, the defendant sought to amend his answer so as to plead that the agreement of guaranty was without consideration; this motion was denied and the defendant duly excepted. We think that this amendment should have been permitted. In view of the circumstances of this case and the fact that the pleadings were oral, substantial justice would have been promoted by allowing the amendment. Mun. Ct. Act, § 166.

The judgment is reversed and a new trial ordered, with costs to the appellants to abide the event.

Present, GILDERSLEEVE, SEABURY and DAYTON, JJ.

Judgment reversed and new trial ordered, with costs to appellants to abide event.