Hyperlawhypertext legal database McKillop, Walker & Co. v. New York Preparatory School 91 N.Y.S. 338

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McKillop, Walker & Co. v. New York Preparatory School

91 N.Y.S. 338 Court N.Y. App. Term Decision date 1904-12-23 English

Delivered by MacLEAN, J.

Contents

Majority

p. 338
McKILLOP, WALKER & CO. v. NEW YORK PREPARATORY SCHOOL.
(Supreme Court, Appellate Term.
December 23, 1904.)

Headnote

1. Advertising Contract—Performance—Payment.
Where defendant authorized plaintiff to insert a certain advertisement in plaintiff’s publication for a period of 34 insertions, for which defendant agreed to pay a certain sum “in monthly payments as due,” proof of 7 insertions between the dates specified in the complaint entitled plaintiff to recover therefor, regardless of whether the contract was entire or for a year.
Appeal from Municipal Court, Borough of Manhattan, Twelfth District.
Action by McKillop, Walker & Co. against the New York Preparatory School. From a Municipal Court judgment in favor of defendant, plaintiff appeals.
Reversed.
Argued before FREEDMAN, P. J., and GILDERSLEEVE and MacLEAN, JJ.
Arthur L. Fullman, for appellant.
Henry L. Ruppert, for respondent.

The plaintiff, as assignee of the New York Interscholastic Association, claimed for seven insertions of an advertisement of the defendant in the Interscholastic Bulletin between January 6 and March 13, 1903, upon the following contract, dated May 38, 1902 :

“You are hereby authorized to insert our advertisement, to occupy ys page inches, for a period of thirty-four insertions, in the Interscholastic Bulletin, for which we agree to pay the sum of three hundred and forty dollars, in monthly payments as due; said insertions to commence with the next issue following the date of this contract, and to continue at the same rate until qtherwise ordered.”

This was accepted, and whether entire, or for a year as urged, is immaterial. Proof of seven insertions between the dates mentioned

p. 339
established an indebtedness under the provision in the order providing for payment by the defendant “in monthly payments as due.” The judgment in favor of the defendant must therefore be reversed, and a new trial ordered, with costs to the appellant to abide the event.

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