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Hamilton v. Smith

141 N.Y.S. 577 Court Argued April term, 1913, before GUY, GERARD, and PAGE, JJ. Decision date 1913-05-08 English

Delivered by GERARD, J.

Contents

Majority

p. 577
HAMILTON v. SMITH.
(Supreme Court, Appellate Term, First Department.
May 8, 1913.)

Headnote

1,. Contracts (§§ 9, 10, 54*)—Mutuality—Definiteness—Consideration.
The contract, evidenced by a writing, signed by defendant; “This is to certify that I agree to pay H. [plaintiff] '$25 in advance on the 1st of each month for six months commencing * * * for the privilege of taking stone from dump at St. Nicholas avenue. No other permits to be granted by H. * * * during the time specified”—is not invalid,
as lacking mutuality, or being too indefinite, or without consideration.
[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 10-40, 233-239, 242, 243, 251, 254, 255, 291-315; Dec. Dig. §§ 9, 10, 54.*]
2. Witnesses (§ 275*)—Cross-Examination of Party.
Defendant, sued on his agreement to pay certain sums for the privilege of taking stone from a dump, contending plaintiff neither owned the dump, nor had the right to use or let any one else use it, may, on cross-examination of plaintiff, ask him questions tending to show he did not own or have control of it.
[Ed. Note.—For other cases, see Witnesses, Cent. Dig. §§ 924, 926, 967-975; Dec. Dig.' § 275.[1] ]
Appeal fiom Municipal Court, Borough of Manhattan, Seventh District.
Action by Charles Hamilton against Lewis Smith. From a judgment for plaintiff, after a trial without a jury, defendant appeals. Reversed, and new trial ordered.
Argued April term, 1913, before GUY, GERARD, and PAGE, JJ.
William L. Schneider, of New York City, for appellant.
John A. Bolles, of New York City, for respondent.

This action was brought by plaintiff to recover the sum of $50 alleged to be due under the terms of a certain contract which read as follows:

“This is to certify that I agree to pay Charles Hamilton $25 in advance on the 1st of each month for six months, commencing from August 1, 1912, to January 31/1913, with privilege of renewal for six months from and including February 1, 1913, for the privilege of taking stone from dump at St. Nicholas avenue. No other permits to be granted by Mr. Hamilton, only to me, during the time specified.
“[Signed] Lewis Smith, 162 Sherman Avenue.”

[1] The action was brought to recover two installments under this contract. Appellant contends that the contract is invalid, as lacking mutuality, too indefinite, and without consideration. It is evident on the face of this contract that none of these objections have any merit whatever.

[2] The appellant also contends that the dump referred to did not belong to the plaintiff, and the plaintiff did not have the right to use it, or allow any one else to use it. On the cross-examination of plaintiff, certain questions asked by defendant’s counsel, tending to show that the plaintiff did not own the dump or have any control of it were ruled out. These questions should have been allowed, and because of

p. 578
the nonallowance of these questions the judgment must be reversed-

Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.