Linzer v. Weitzen

No opinion. Carswell, Johnston and Adel, JJ., concur; Close, P. J., and Lewis, J., dissent and vote to reverse the judgment on the [749] law and to dismiss the complaint on the law, with the following memorandum: Plaintiff has recovered a judgment upon a claim discharged in bankruptcy based on the theory of an alleged subsequent promise in writing to pay. In our opinion the alleged promise in writing fails to meet the tests required to establish a present intention by the debtor to obligate himself or to undertake to pay. (Allen & Co. v. Ferguson, 85 U. S. 1; Herrington v. Davitt, 220 N. Y. 162; Lawrence v. Harrington, 122 N. Y. 408; Elwell v. Cumner, 136 Mass. 102; Gain v. Dunn, 243 App. Div. 849.)