North Side News Co. v. Cypres — 75 Misc. 129

Majority

p. 129

The North Side News Company, Respondent, v. Michael H. Cypres, Appellant.

(Supreme Court, Appellate Term,

January, 1912.)

Headnote

Offer and acceptance—■ Essentials and necessity of agreement — Necessity for acceptance.

The acceptance of an offer to pay a definite sum for the publication of advertisements during a definite period necessarily implies an agreement on' the part of the publisher to publish the advertisements during the prescribed period.

Appeal by the defendant from a judgment of the Municipal Court of the city of Hew York, borough of the Bronx, second district, rendered in favor of the plaintiff.

Bloch & Hoffman (Alexander Bloch, of counsel), for appellant.

Henry W. Kifalfy, for respondent.

The plaintiff has recovered judgment for damages for breach of contract. The appellant claims that this contract is void for want of mutuality and relies for authority upon the case of White v. Kingston Motor Car Co., 69 Misc. Rep. 627 . The contract contains no express agreement on the part of the plaintiff to perform any act; but: “ Whether a covenant will be read into a contract where there is no express agreement to perform depends upon the intent of the parties gathered from the instrument and the surrounding circumstances.” Commercial Wood & Cement Co. v. Northampton Portland Cement Co., 115 App. Div. 388 , 393; affd. on other grounds, 190 N. Y. 1 . The acceptance of the offer as .evidenced by the insertion of the advertisement authorized by the defendant did not, under the circumstances existing in the White case, bind the plaintiff’s assignor to continúe the insertions. It- was merely the acceptance of the defendant’s offer to pay a certain amount per

p. 130

insertion. The acceptance of the whole offer was expressly made dependent upon confirmation by a committee of the corporation owning the newspaper. In this case the accept-. anee of the offer to pay a definite sum for the insertion of advertisements during a ‘definite period necessarily implies that the plaintiff agreed to publish these advertisements during this period. . .

Judgment must, therefore, be affirmed with costs.

Present: Giegkerich, Lehman and Pendleton, JJ.

■ Judgment affirmed, with costs.

Cases cited

White v. Allen Kingston Motor Car Co. 69 Misc. Rep. 627 N.Y. App. Term 1910-12-08 p. 129
Commercial Wood & Cement Co. v. Northampton Portland Cement Co. 115 App. Div. 388 N.Y. App. Div. 1906-11-05 at 393 p. 129
Commercial Wood & Cement Co. v. Northampton Portland Cement Co. 190 N. Y. 1 N.Y. 1907-11-19 p. 129