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Marx v. Gross

22 N.Y.S. 393 Court N.Y. Super. Ct. Decision date 1893-03-06 English

Delivered by SEDGWICK, C. J.

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p. 393
MARX et al. v. GROSS et al.
(Superior Court of New York City, General Term.
March 6, 1893.)

Headnote

Action on Contract—Pleading.
For the purpose of an action on a contract, the allegation of the contract in the complaint, not controverted by the answer, is to be taken as true, (Code Civil Proc. § 522,) and the allegation in the answer of a different contract has no effect.
Appeal from judgment on report of referee.
Action by Frederick Marx and another against Eugene A. Gross and others. From a judgment entered upon the report of a referee, defendants appeal.
Affirmed.
Argued before SEDGWICK, C. J., and DUGRO and GILDER-SLEEVE, JJ.
James Thomson, for appellants.
George A. Black, for respondents.

The action was for damages for the nondelivery of goods agreed by defendants to be delivered to plaintiffs. The learned counsel for the appellants has argued on the appeal certain questions which were not presented on the trial, and did not occasion any exception to the rulings of the referee. These were the effect of the statute of frauds in the case, and whether the principal amount of dues, assuming the damages to be unliquidated, bore interest, and also as of what time the damages were to be computed. I am of opinion that the allegation of the complaint, of the contract not being controverted by the answer, was to be taken as true, for the purpose of the action. Civil Code, § 522; Fleischmann v. Stem, 90 N. Y. 110 . For the purpose of determining the basis of the cause of action, the allegation of the answer, of a contract of other terms or of different character, has no function or effect. The differences of fact between the parties have been fully and satisfactorily considered by the learned referee. The facts found by him were supported cby evidence. The conclusions of law from the facts were correct.

Judgment affirmed, with costs. All concur.

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