Kellner v. Kener — 239 N.Y. 522

Majority

p. 522

John S. Kellner, Appellant, v. Edward Kener, Jr., Respondent, Impleaded with Others.

Headnote

Contract — former adjudication — limitation of' actions — release — Statute of Fraud s — motion for judgment on pleadings granted.

Kellner v. Kener, 209 App. Div. 844 , affirmed.

(Argued October 1, 1924;

decided October 21, 1924.)

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 29,1924, unanimously affirming a judgment in favor of defendant, respondent, entered upon a dismissal of the complaint as to him by the court at Special Term on a motion for judgment upon the pleadings. The grounds of the motion were former

p. 523

adjudication of the cause of action at issue; that it was barred by the Statute of Limitations; that the claim set forth in the complaint had been released and that the alleged contract was void under the Statute of Frauds. (See 234 N. Y. 521 .)

Simon Fleischmann, Benjamin S. Dean and Martin Clark for appellant.

Wilber E. Houpt for respondent.

Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.

Cases cited

Kellner v. Kener 234 N. Y. 521 N.Y. 1922-07-12 p. 523