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Weinman v. Margolish

120 N.Y.S. 734 Court N.Y. App. Term Decision date 1910-01-21 English

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p. 734
WEINMAN v. MARGOLISH et al.
(Supreme Court, Appellate Term.
January 21, 1910.)

Headnote

Appeal and Error (§ 925[1] )—Review—Presumptions.
Where counsel obtained, without objection, leave to submit briefs by a certain date, the case must be considered as having been submitted on that date.
[Ed. Note.—For other cases, see Appeal and Error, Dec. Dig. § 925.*]
Appeal from Municipal Court, Borough of Manhattan, Eighth District.
Action by Isak Weinman against Matthew E. Margolish and others. From a judgment for defendants, plaintiff appeals.
Affirmed.
Argued before GIEGERICH, DAYTON, and LEHMAN, JJ.
Jacob Gordon, for appellant.
Aaron J. Levy, for respondents.

The record contains a request from counsel for leave to submit briefs. Thereupon the court said:

“You may submit briefs by June 21st, and I will have 14 days thereafter to decide.”

Neither counsel objected to this statement, and the case must be considered as having been submitted on that date.

The alleged promise of the defendant was certainly within the statute of frauds. All the testimony shows clearly that the respondent never intended to assume an original obligation, and that the plaintiff at all times regarded respondent’s brother as the principal debtor, and even made him a party to this action.

Judgment should be affirmed, with costs. All concur.