Majority
p. 1105BARUCH v. COPELAND. (Supreme Court, Appellate Term, First Department. June 10, 1915.)
Headnote
Appeal from City Court of New York, Trial Term. Action by Herman Baruch against Goldine R. Copeland. From a judgment for plaintiff, defendant appeals.Reversed, and new trial ordered.
Breed, Abbott ■& Morgan, of New York City (William C. Breed and Edward A. Craighill, Jr., both of New York City, of counsel), for appellant.
Goldsmith, Rosenthal, Mork & Baum, of New York City (Max Horowitz, of New York City, of counsel), for respondent.
After a careful examination of plaintiff’s testimony and the testimony as to the payment to defendant by the insurance company, we are of the opinion that there was no mutual binding executory contract between plaintiff and defendant. The plaintiff did not bind himself to do anything. Neither does the evidence establish that the plaintiff performed any act for which defendant promised to pay him the sum of $1,500. Plaintiff did not get the money for defendant. Plaintiff simply wrote a letter to the insurance company. Defendant herself collected the money, and was required by the insurance company to perform several conditions precedent before it was paid to her. •Plaintiff performed none of these services; in
p. 1106
fact, whatever promise was made to plaintiff was withdrawn before plaintiff had performed any substantial services. Judgment should be reversed, and new trial ordered, with costs to appellant to abide the event.
LEHMAN, J., concurs in result.