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Miller v. Sullivan

67 N.Y.S. 168 Court N.Y. App. Term Decision date 1900-11-27 English

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p. 168
MILLER v. SULLIVAN et al.
(Supreme Court, Appellate Term.
November 27, 1900.)

Headnote

Contracts under Seal—Substituted Parol Agreement—Actual Performance.
A judgment for plaintiff on a parol agreement, shown to have been substituted for a contract under seal, will not be reversed on appeal, though disputed facts as to the first agreement are resolved in favor of defendant, where the subsequent parol agreement is fully proved, and followed by actual performance.
Appeal from municipal court, borough of Manhattan, Ninth district.
Action by Henry Miller against John J. Sullivan and another. From a judgment in favor of the plaintiff, defendants appeal.
Affirmed.
Argued before BEEKMAN, P. J., and GIEGERIOH and O’GORMAN, JJ.
Cahill, Geiseman & Phillips, for appellant.
Benjamin Baker, for respondents.

If the disputed facts respecting the first agreement between the parties were resolved in favor of the defendants, the plaintiff would nevertheless be entitled to recover on the evidence in this case. Plaintiff’s evidence relating to the making of the second agreement is amply supported by the evidence of disinterested witnesses, and, as a contract under seal may be annulled by a substituted parol agreement followed by actual performance (McCreery v. Day, 119 N. Y. 1 , 23 N. E. 198 , 6 L. R. A. 503 ), the judgment should be affirmed.

Judgment affirmed, with costs.

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