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Tausig v. Drucker

90 N.Y.S. 380 Court N.Y. App. Term Decision date 1904-11-10 English

Delivered by FREEDMAN, P. J.

Contents

Majority

p. 380
TAUSIG et al. v. DRUCKER.
(Supreme Court, Appellate Term.
November 10, 1904.)

Headnote

1. Advancement oe Money—Failure oe Consideration—Recovery.
Money advanced on a consideration -which subsequently fails may be recovered.
Appeal from City Court of New York, Trial Term.
Action by Emil Tausig and others against Henry M. Drucker. From an interlocutory judgment overruling a demurrer to the second amended complaint and granting leave to answer on terms, defendant appeals.
Affirmed.
See 88 N. Y. Supp. 391 .
Argued before FREEDMAN, P. J., and BISCPIOFF and FITZGERALD, JJ.
M. S. & I. S. Isaacs and Leo G. Rosenblatt, for appellant
Powell & Cady, for respondent.

By the amended complaint now before the court the defect pointed out on the former appeal has been obviated, and the case taken out of the rule laid down in Schlesinger v. Burland, 42 Mise. Rep. 206, 85 N. Y. Supp. 350 , and brought within the general and well-recognized rule that money advanced upon a consideration which subsequently fails may be recovered back.

Interlocutory judgment overruling defendant’s demurrer to said amended complaint should be affirmed, with costs. All concur.