Lynch v. Murphy

Headnote

Lynch v. Murphy, 165 App. Div. 903 , affirmed.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 18, 1914, affirming a determination of the Appellate Term which affirmed a judgment of the City Court of the city of New York in favor of plaintiff entered upon a verdict. The complaint alleged that immediately prior to October 30, 1905, an agreement was entered into between plaintiff and defendant wherein and whereby the defendant promised and agreed with the plaintiff that if the plaintiff would purchase any shares of the capital stock of the Columbia Carbide Company of South Dakota, a foreign corporation, and the corporation was not within a reasonable length of time thereafter a success or the plaintiff did not realize upon her interest in the corporation, the defendant would purchase from the plaintiff the said shares of stock so purchased by her and would pay to the plaintiff the amount which the said plaintiff should pay therefor, and interest; that the plaintiff fully kept and performed all the terms of said agreement on her part ’ to be performed, and on October 30, 1905, purchased and" took ten shares of said stock, paying therefor the sum of $100; that more than a reasonable length of time has passed since such purchase and the plaintiff has not realized upon her interest in said corporation, and the corporation is not a success, but is in a dormant condition, doing no business, and the plaintiff has been unable to realize upon her interest in the corporation, upon her shares of stock, and on or about the 30th day of September, 1911, the plaintiff tendered to the defendant the said' ten shares of stock and demanded from the defendant that she purchase the same from her and pay to her the said sum of $100, the

amount that the plaintiff had paid therefor, and interest, but that defendant has neglected and refused to do so. The defendant alleged that the agreement or promise was a special promise to answer for the debt, default or miscarriage of a person other than this defendant, to wit, the Columbia Carbide Company of South Dakota, and that said promise was not nor was any note or memorandum thereof made in writing or subscribed by the party to be charged therewith.