Brand v. Brand — 48 N.Y. 675

Majority

p. 675

Joseph Brand, Respondent, v. Allen Brand et al., Appellants.

(Argued September 28, 1871;

decided January term, 1872.)

Headnote

Dependants were jointly indebted to the plaintiff in the sum of §100; plaintiff was indebted to Edward Brand, one of the defendants, in an equal or greater amount. It was agreed, by parol, between plaintiff and Edward, that the debt due the former should be set off and applied upon the demand of the latter, and that the former’s claim be thereby canceled. Plaintiff brought this action to recover his demand. Held, that the agreement was not one. of sale or transfer, and was not within the provisions of the statute of frauds. (Gray and Leonard, CC., dissenting.)

D. K. Obiey for the appellants.

Lymam, Tremain for the respondent.

p. 676

Hunt, 0., reads for reversal.

Gray, C., for affirmance.

For reversal, Lott, Ch. C., Hunt and Earl, 00.

For affirmance, Gray and Leonard, CO.

Order of General Term reversed, and judgment, upon report of referee, affirmed, with costs.