Oldham v. Pinkus — 64 N.Y.S. 353

Majority

p. 353

OLDHAM v. PINKUS.

(Supreme Court, Appellate Term.

May 1, 1900.)

Headnote

Appeal and Error—Record—Statute op Frauds.

A judgment in favor of defendant in an action on an agreement required by tile statute of frauds to be in writing will be reversed on appeal, where defendant, in his answer, admits the agreement, and it does not appear from the record whether or not it was in writing.

Appeal from municipal court, borough of Manhattan, First district.

Action by Edmund T. Oldham against Frederick S. Pinkus. From a judgment in favor of defendant, plaintiff appeals.

Reversed.

Argued before TRUAX, P. J., and SCOTT and DUGRO, JJ.

Edmund T. Oldham, in pro. per.

Miller.& Hartcorn, for respondent.

The plaintiff rested upon the admission of the answer, and was entitled to judgment, unless it appeared that the agreement was void under the statute of frauds. There is nothing to show that the statute was applicable, as the record does not disclose whether the agreement was in writing or not. Had it appeared that the agreement was not in writing, the judgment would have been affirmed. Such an agreement as the letter of January 12th has reference to does not constitute novation.

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