Roland v. Pinckney , 60 N.Y. St. Rep. 606 ( 1894 )

Per Curiam

With respect to the alleged agreement offered as evidence constituting proof of the existence of an agreement between Soelkey and Pinckney, it may be said that no presumption arises from it of the existence of a counterpart. The case of Hughes v. Clarke, 15 Jur. 430, to which reference was madb, is not in point. Formerly each party to an indenture executed a separate deed. That part which was executed by the grantor was called the original and the rest counterparts. It is now, however, ■usual for all parties to execute every part -; hence, a presumption arising from a usual practice to have a counterpart cannot exist here. As the complaint sets forth an agreement under seal as that for the breach of which a recovery is sought, the learned trial judge was right in his ruling when he stated that the mutual covenants constituted the considerations on both sides, and unless there was an agreement by Soelkey there was no consideration for the covenants on the part of Pinckney.

The only error at the trial was in the exclusion of some of the testimony of Soelkey as barred by § 829, Code of Civil Procedure. As the plaintiff may have been prejudiced thereby, there must be a reversal and a new trial. Macdonald v. Woodbury, 30 Hun, 35; Rice v. Motley, 24 id. 143. These cases seem to accord with the reason of the law, and we have concluded to follow them, costs to abide event.

Judgment reversed and new trial ordered, costs to abide event