New York Court of Appeals, 1954

Gorham v. Arons

New York Court of Appeals · Decided February 25, 1954

306 N.Y. 782; 118 N.E.2d 600; 1954 N.Y. LEXIS 1128

Cases that cite this one

12 later published cases cite this decision.

Rector v. Melish (Appellate Division of the Supreme Court of New York 1957)
Mallouris v. Re Spec Corp. (2d Cir. 2004)
Starkovich v. Noye (Ariz. 1974)
Warren v. Arena Associates, Inc. (Appellate Division of the Supreme Court of New York 1985)
Hartford Accident & Indemnity Co. v. Michigan Mutual Insurance (Appellate Division of the Supreme Court of New York 1983)
Mennis v. Westchester County Playland Commission (Appellate Division of the Supreme Court of New York 1982)
Tortora v. LaVoy (Appellate Division of the Supreme Court of New York 1976)
Jay's Stores, Inc. v. Ann Lewis Shops, Inc. (N.Y. 1965)
Grippo v. Di Vito (Appellate Division of the Supreme Court of New York 1959)
Naso v. Lafata (N.Y. 1958)
Harrington v. 615 West Corp. (Appellate Division of the Supreme Court of New York 1956)
Traub v. Dinzler (N.Y. 1955)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

Per Curiam.

Appellant, third-party plaintiff, urges that the Appellate Division improperly reversed the judgment of the trial court and dismissed its third-party complaint on the basis of appellant’s breach of its agreement with respondent, third-party defendant, since the latter’s answer, while alleging the agreement, failed to plead a breach. The record shows, however, that evidence offered to establish such breach was admitted at the trial, and that the issue was considered and determined by both the trial court and the Appellate Division — all without demur or objection from appellant, until it moved for reargument in the Appellate Division. Especially in such circumstances, the Appellate Division was fully empowered to deem the pleadings as amended to conform to the proofs or to disregard respondent’s omission to plead the defense (Civ. Prac. Act, §§ 105, 109). Nothing in Volkening v. De Graaf (81 N. Y. 268, 272) or Amherst Coll. v. Ritchie (151 N. Y. 282, 337) or McCaddon v. Central Trust Co. of N. Y. (229 N. Y. 560, affg. 182 App. Div. 846) denies such authority to the Appellate Division, even though it reverses the judgment below.

The judgment appealed from should be affirmed, with costs.

Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ., concur.

Judgment affirmed.

Case-law data current through September 30, 2026. Source: CourtListener bulk data.