Wolf v. Herrman — 88 N.Y.S. 1120

Majority

p. 1120

WOLF, Respondent, v. HERRMAN, Appellant.

(Supreme Court, Appellate Term.

May 5, 1904.)

Headnote

Action by Harris Wolf against Henry Herman. From a Municipal Court judgment in favor of plaintiff, defendant appeals. Modified. Edward Herrmann, for appellant. Samuel Rosenbloom, for respondent.

Had the defense of the statute of frauds been pleaded or raised at the trial, the plaintiff’s recovery would have been limited to $50; and, in view of the tender of that amount before suit brought and its subsequent payment into court, the judgment should have gone for the defendant. In the absence of such a plea, the justice was warranted in awarding $75 to the plaintiff; but the judgment in his favor should have been in the sum of $25, as the $50 on deposit awaited his order. Judgment modified, by reducing it to $25 and costs, and, as modified, affirmed, without costs.