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Robie v. French Co.

Appellate Division of the Supreme Court of New York, First Department
May 6, 1927
220 App. Div. 414 (N.Y. App. Div. 1927)

Opinion

May 6, 1927.

Appeal from Supreme Court of New York County.

Eugene Morgan Hawkins of counsel [ William L. Tierney, attorney], for the appellant.

Robert H. Scholl of counsel [ J. Fearon Brown with him on the brief; Kellogg, Emery, Inness-Brown Cuthell, attorneys], for the respondent.

Present — DOWLING, P.J., MERRELL, FINCH, McAVOY and PROSKAUER, JJ.


Ordinarily, under the allegations of a complaint that the contract was made in or about the month of November, evidence would be admissible that a contract was made on the sixth of December. Inasmuch as the Statute of Frauds (Pers. Prop. Law, § 31, subd. 1) is involved, however, the plaintiff, if he be so advised, should plead exactly in his complaint. The order should, therefore, be modified by granting the plaintiff leave to serve an amended complaint, without prejudice to the present position of the case on the calendar, and as so modified affirmed, without costs.


Order modified by granting plaintiff leave to serve an amended complaint, without prejudice to the present position of the case on the calendar, and as so modified affirmed, without costs, with leave to plaintiff to serve an amended complaint within twenty days from service of order upon payment of ten dollars costs awarded to the defendant by the order appealed from.


Summaries of

Robie v. French Co.

Appellate Division of the Supreme Court of New York, First Department
May 6, 1927
220 App. Div. 414 (N.Y. App. Div. 1927)
Case details for

Robie v. French Co.

Case Details

Full title:MARSHALL ROBIE, Appellant, v. FRED F. FRENCH COMPANY, Respondent

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: May 6, 1927

Citations

220 App. Div. 414 (N.Y. App. Div. 1927)
221 N.Y.S. 592