Stewart v. Auerbach

Appellate Division of the Supreme Court of the State of New York

Decided December 29, 1911

Appellate Division of the Supreme Court of the State of New York · decided 1911-12-29

Appeal by the defendant, Theodore E. Auerbach, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of April, 1911, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the said defendant’s demurrer to the amended complaint.

Relies on Marston v. . Gould

Decided 1911-12-29

Scott, J.

¶1(dissenting):

¶2I dissent. The contract, as plaintiff alleges it, is that defendants would deliver to him, in specie, one-half of the gross consideration received for the land, over and above a given sum. It is not a contract for the payment of money alone. I think that the case falls within the principle of Marston v. Gould (69 N. Y. 220) and Marvin v. Brooks (94 id. 71).

¶3Judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiff to amend on payment of costs.