[Trade Journal]
Publication: Supreme Court Appellate Division, Second Department
New York, NY, United States
vol. 3719, p. 1-124, col. 1
SUPREME COURT
Appellate Division -- Second Department.
HEMINGRAY GLASS COMPANY,
Plaintiff-Respondent,
against
WILKENFELD BROTHERS, INC.,
Defendent-Appellant.
PAPERS ON APPEAL.
JOSEPH & DEMOV,
Attorneys for Defendant-Appellant,
1431 Broadway,
New York City.
WINGATE & CULLEN,
Attorneys for Plaintiff-Respondent,
189 Montague Street,
Brooklyn, N. Y.
Index.
Page
Notice of Appeal.............................................................................................................1
Order Appealed From.....................................................................................................2
Judgement Appealed From.............................................................................................5
Notice of Motion............................................................................................................7
Affidavit of Frederick J. Lesh, Read in
Support of Motion......................................................................................................8
Affidavit of Frederick J. Lesh, Read in
Support of Motion.....................................................................................................16
Summons.......................................................................................................................17
Complaint......................................................................................................................18
Answer...........................................................................................................................20
Reply..............................................................................................................................23
Correspondence.............................................................................................................24
Notice to Produce..........................................................................................................38
Answering Affidavit of Elias Wilkenfeld
Read in Opposition to Motion...................................................................................42
Answering Affidavit of Abraham Wilkenfeld
Read in Opposition to Motion...................................................................................52
Answering Affidavit of Walter Wilmurt
Read in Opposition to Motion...................................................................................53
Exhibits Referred to in Affidavit of Elias Wilkenfeld
Read in Opposition to Motion...................................................................................54
Exhibits Referred to in Affidavit of Walter Wilkenfeld
Read in Opposition to Motion....................................................................................65
Opinion...........................................................................................................................66
Clerk's Certificate...........................................................................................................66
Notice of Appeal.
SUPREME COURT
KINGS COUNTY.
__________________________________
HEMINGWAY GLASS COMPANY,
Plaintiff,
against
WILKENFELD BROTHERS, INC.,
Defendant.
__________________________________
Sirs:
Please Take Notice that the defendant above named hereby appeals to the Appellate Division of the Supreme Court of the State of New York, Second Judicial Department, from a judgment entered herein in the Office of the Clerk of the County of Kings, on the 31st day of October, 1928, in favor of plaintiff and against the defendant, in the sum of Three thousand four hundred and five and 27/100 ($3,405.27) Dollars, and also from an order entered herein dated October 26th, 1928, and entered in the office of the Clerk of County of Kings, on the 27th day of October, 1928, granting the plaintiff's motion to strike out the answer of the defendant and the affirmative defense and counterclaim contained in said answer and dismissing the said counterclaim, and that it appeals from each and every part of said order and judgment.
Dated, New York, November 1st, 1928.
Yours, etc.
JOSEPH & DEMOV,
Attorneys for Defendant,
1431 Broadway,
New York City.
To:
Wingate & Cullen, Esqs.,
Attorneys for Plaintiff,
189 Montague Street,
Brooklyn, N. Y.
Order Appealed From.
At a special Term, Part, I, of the Supreme Court of the State of New York, Held in and for the County of Kings at the Borough of Brooklyn, City of New York on the 26 day of October 1928.
Present: Hon. Burt Jay Humphrey, Justice.
__________________________________
HEMINGWAY GLASS COMPANY
Plaintiff,
against
WILKENFELD BROTHERS, INC.,
Defendant.
__________________________________
The plaintiff in the above-entitled action, having made a motion for an order striking out the answer of the defendant and dismissing the counterclaim herein and directing that judgment be entered herein in favor of the plaintiff on the ground that there is no defense to this action, and that the facts set forth in the counterclaim do not constitute an offset against the demand in the complaint, answer and reply herein, and on reading and filing the notice of motion dated August 22, 1928, and the affidavits of Frederick J. Lesh, an officer of the plaintiff corporation, duly verified on the 20th day of August, 1928, and on the 24th day of August, 1928, attached to said motion papers and made a part thereof, and upon reading and filing letters between the parties submitted on the argument bearing dates, March 15, 1928, March 19, 1928, March 21, 1928, March 27, 1928, March 31, 1928, April 6, 1928, April 10, 1928, May 8, 1928, May 19, 1928, May 28, 1928, June 4, 1928, June 8, 1928, and June 12, 1928, and telegrams dated May 31, 1928 and June 2, 1928, and the notice to produce the letters aforesaid, dated September 10, 1928, submitted by the attorneys for the plaintiff in favor of said motion, with due proof of service of the said notice of motion, and affidavits aforesaid, together with notice to produce and affidavits aforesaid, together with notice to produce and affidavits of Elias Wilkenfeld, Abraham Wilkenfeld and Walter Wilmurk in opposition thereto, and after hearing Platt K. Wiggins, a member of the firm of Wingate & Cullen, attorneys for the plaintiff in favor of said motion, and after hearing counsel representing Joseph & Demov, Esqs., attorneys for the defendant in opposition thereto, and due deliberation having been had, it is on motion of Wingate & Cullen, attorneys for the plaintiff.
Ordered, that the said motion be, and the same is hereby granted, and that the answer and affirmative defense are hereby stricken out, and the counterclaim contained in said answer is hereby dismissed and the judgment be entered herein in favor of Hemingray Glass Company, improperly referred to in the complaint herein as Hemingway Glass Company, the correct and proper name of which is Hemingray Glass Company, as alleged in Paragraph "Third" of the defendant's answer, in the sum of Thirty-three hundred Three and 69/100 ($3,303.69) Dollars, with interest on Eleven Hundred Twelve and 04/100 ($1,112.04) Dollars from May 16, 1928, and on Ten Hundred Seventy-three and 87/100 ($1,073.87) Dollars thereof from May 18, 1928, and on Eleven Hundred Seventeen and 78/100 ($1,117.78) Dollars thereof from May 22, 1928, besides the costs and disbursements of the action and Ten ($10) Dollars costs of this motion in favor of the Hemingray Glass Company against Wilkenfeld Brothers, Inc.
Enter,
B. J. H.,
J. S. C.
Granted
Oct. 27, 1928
William E. Kelly,
Clerk.
Judgment Appealed From.
SUPREME COURT,
KINGS COUNTY.
__________________________________
HEMINGWAY GLASS COMPANY,
Plaintiff,
against
WILKENFELD BROTHERS, INC.,
Defendant.
__________________________________
A motion having been made in this action for an order striking out the answer of the defendant and dismissing the counterclaim herein and directing that judgment be entered in favor of the plaintiff on the ground that there is no defense to this action; and that the facts set forth in the counterclaim do not constitute an offset against the demand in the complaint. And said motion having come on to be heard, and an order having been entered herein dated the 29th day of October, 1928, by Hon. Burt Jay Humphrey, a Justice of this court, granting said motion and that the answer and affirmative defense be stricken out and the counterclaim contained in the answer dismissed and judgment be entered in favor of Hemingray Glass Company, improperly referred to in the complaint. as Hemingway Glass Company, in the sum of Thirty-three Hundred Three and 69/100 ($3,303.69) Dollars and interest on Eleven Hundred Twelve and 04/100 ($1,112.04) Dollars from May 16, 1928, and on Ten Hundred Seventy-three and 87/100 ($1,073.87) Dollars from May 18, 1928, and on Eleven Hundred Seventeen and 78/100 ($1,117.78) Dollars from May 22, 1928, together with costs and disbursements of the action, and Ten ($10) Dollars costs of this motion in favor of the plaintiff, Hemingray Glass Company against Wilkenfeld Brothers, Inc.; and the plaintiff’s costs having been duly adjusted at Thirty and 85/100 ($30.85) Dollars.
Now, on motion of Wingate & Cullen, attorneys for the plaintiff, it is
Adjudged, that the plaintiff, Hemingray Glass Company, do recover of the said defendant, Wilkenfeld Brothers, Inc., the sum of Thirty-three Hundred Three and 69/100 ($3,303.69) Dollars, plus interest of Seventy and 73/100 ($70.73) Dollars, with costs as taxed amounting to Thirty and 85/100 ($30.85) Dollars, making in all a total of Thirty-four Hundred Five and 27/100 ($3,405.27) Dollars and that the plaintiff have execution therefor against the defendant.
Dated, Brooklyn, New York, October 31st, 1928.
WILLIAM E. KELLY,
Clerk.
Notice of Motion.
[SAME TITLE.]
Sirs: Please Take Notice that on the pleadings in this action and the affidavits of Frederick J. Lesh, an officer of the plaintiff corporation duly verified the 20th day of August, 1928, and August 24th, 1928, the undersigned will move this court at a term thereof to be held at the County Court House in the Borough of Brooklyn, City of New York, on the 6th day of September, 1928, at the opening of court on that day or as soon thereafter as counsel can be heard, for judgment as demanded in the complaint, and that the answer be stricken out and judgment enter herein pursuant to Rule 113 of the Rules of Civil Practice, and that the plaintiff be given judgment striking out and dismissing the counterclaim herein pursuant to said rule and pursuant to such other rule in such case made and provided, and for such other or further relief or order as the court may seem proper.
Dated, Brooklyn, New York, August 22nd, 1928.
Yours, etc.,
WINGATE & CULLEN,
Attorneys for Plaintiff,
Office & P. O. Address,
No. 189 Montague Street,
Borough of Brooklyn,
City of New York.
TO :
Joseph & Demov, Esq.S.,
Attorneys for Defendant,
1431 Broadway,
New York City.
Affidavit of Frederick J. Lesh, Read in Support of Motion.
[SAME TITLE.]
State of Indiana,
County of Delaware, ss:
Frederick J. Lesh, being duly sworn, deposes and says: That he is an officer of the plaintiff corporation, to wit, its Auditor that deponent is familiar with the subject matter of this action and the alleged counterclaim interposed by the defendant herein. That the sources of deponent’s knowledge in addition to his actual participation in the negotiations and contract between the parties, are the various correspondence, records and files of the plaintiff corporation which are in his possession.
That this action was begun by the service of a summons and verified complaint on July 13th, 1928, a copy of said complaint is attached hereto and made a part hereof. That on August 1st, 1928, issue was joined by the service of the defendant’s answer, a copy of which is also attached hereto, and that on August 17th, 1928, the plaintiff served a reply to the alleged counterclaim contained in said answer of the said defendant.
That this is an action for goods sold and delivered consisting of three carloads of “Lion’’ beer bottles. This merchandise was ordered by the defendant from the plaintiff between the 15th day of May, 1928, and the first day of June, 1928, and delivery was made of the said three carloads, that the defendant promised and agreed to pay therefor the sum of $3,303.69. which has not been paid, although duly demanded.
The facts are as follows: On March 15th, 1928, the plaintiff received a letter from the defendant stating that the defendant desired a car of “Lion” beer bottles shipped on March 26th. On March 19th, the plaintiff wrote the defendant stating that the beer bottles, as requested in the letter of March 12th, would go forward on the 26th as requested, and that the said shipment depleted the present “Lion’’ stock of beer bottles and raised the question of how many bottles the defendant would require the plaintiff to manufacture and stock for the defendant during the current year, and requesting an answer as soon as possible in respect to this. On March 21st, 1928, the plaintiff received a letter from the defendant in reply to its letter of March 19th, stating that the defendant required the plaintiff to manufacture and stock 5,000 gross of “Lion” beer bottles. On March 27th, 1928, and in reply to the former letter, the plaintiff wrote to the defendant acknowledging receipt of the requisition of the 5,000 gross of “Lion” beer bottles to be manufactured and stored against requisitions, and stated that the matter must first pass through the credit department, and, that upon the decision of the credit department, it would be necessary for the defendant to take out and pay for all beer bottles on hand on September 1st, 1928. On March 31st, 1928, the plaintiff again wrote the defendant, referring to the previous letter of March 21st relating to the order for the manufacture and stock of 5,000 gross of “Lion” beer bottles, and stated that the terms of shipment of the new order would be in strict accordance with the plaintiff’s terms of thirty days net or 1% in ten days from the date of invoice. The defendant replied thereto on April 6th, 1928, and stated that in reference to the terms for the future shipments, that the terms mentioned in the letter of the plaintiff of March 31st would be complied with, to wit, remittance for shipments on the new order thirty days net, or 1% in ten days from the date of invoices. On April 10th, 1928, confirming this, the plaintiff wrote the defendant stating that the plaintiff had noted that the defendant, in reference to the terms of the defendant’s order of March 21st, 1928, for 5,000 gross of “Lion” beer bottles, had promised to comply strictly with the terms of the plaintiff of thirty days net, or 1% for cash in ten days on the plaintiff's invoices against the order, and also stated that due to the fact that the plaintiff’s credit experience with the defendant had been unsatisfactory, the plaintiff had decided to extend the defendant for only one carload at a time. In other words, that the plaintiff must have cash settlement for the last shipment made before making a new or another shipment. That pursuant to this understanding by and between the parties, as evidenced by correspondence, the original of which or copies thereof are in the hands of deponent, the plaintiff shipped to the defendant and sold and delivered to the defendant, at the defendant’s request, as aforesaid, three carloads of “Lion” beer bottles; and the defendant promised and agreed to pay, as heretofore set forth, the sum of $3,303.69, and the same were reasonably worth said sum. This sum is arrived at as follows: Invoice shipment May 16th, $1,112.04; invoice shipment May 18th, $1,073.87 and invoice shipment May 22nd, $1,117.78. The plaintiff has demanded of the defendant to pay this sum, but the defendant has failed and refuses to pay it. And on May 19th, 1928, the plaintiff wrote the defendant stating that enclosed invoice covered a shipment of a carload of beer bottles amounting to $1,073.87, and that it had previously mailed to the defendant an invoice amounting to $1,112.04 covering shipment of another carload of “Lion” beer bottles on May 16th, and also stated that the plaintiff would send to the defendant another carload of “Lion” beer bottles to be shipped on May 23rd and stated that, in accordance with previous correspondence, the plaintiff expected the defendant to discount these invoices and send remittance within ten days after date with a deduction of 1% cash discount. On May 28th, the plaintiff again wrote the defendant demanding payment of the invoices to date; and on May 31st the plaintiff telegraphed the defendant to pay, and on June 4th, the plaintiff wrote the defendant in respect to a check for $2500 which had been protested for nonpayment because of insufficient funds, and complaining about the action of the defendant in permitting the check to be so protested; and on June 8th the plaintiff wrote the defendant in reference to said letter of protest against the particular check in question and slow payment. The defendant wrote the plaintiff stating in reference to previous letter regarding payment of bills, that they would try to discount the bills, and if not, would pay within thirty days. On June 12th, 1928, the plaintiff again wrote the defendant stating that they had received the letter of the defendant wherein the defendant promised to pay the plaintiff’s invoices within thirty days of their date, and called the attention of the defendant to the fact that the invoices of May 16th, May 18th and May 22nd had not been paid, and expected payment of said invoices. Upon the failure of the defendant to pay for the three invoices mentioned thirty days after the issuance thereof pursuant to the terms of the agreement made between the parties, the plaintiff did not ship any more beer bottles, much to the dissatisfaction, it would seem, of this defendant.
The officers of the defendant evidently were under the impression that they could secure an unlimited supply of beer bottles from the plaintiff without paying for them. This seems to be borne out by the fact that the defendant's officers stated to the representative of the plaintiff that the defendant claimed that the plaintiff should have manufactured and stocked 5,000 gross of beer bottles to be shipped when requested by the defendant to it, irrespective of the payment for the same, and that the plaintiff had failed to live up to the contract because it had not manufactured and stocked the said 5,000 gross of beer bottles, which is the substance of the counterclaim, which is interposed for delay and has no merit.
The agreement between the parties is evidenced by the correspondence heretofore referred to, the originals or copies of which will be produced on the hearing of this motion. In simple terms, the contract was that the plaintiff was to sell and deliver to the defendant beer bottles at an agreed price, which the defendant agreed to pay, either thirty days net or 1% ten days from the date Of the invoice of shipment, and that each previous shipment must be paid for before another shipment would be made.
In this case the plaintiff shipped three carloads and issued three invoices over different periods, none of which was paid. There is no obligation on the part of the plaintiff to indefinitely ship beer bottles to the plaintiff when no payment was made or any endeavor on the part of the defendant to pay for the same, and that this plaintiff refused to make such shipments upon nonpayment of the goods already shipped to the defendant after notice and demand.
It is noticed in the answer of the defendant that an alleged separate and distinct defense is set forth that the plaintiff is a foreign stock corporation, which is a fact, but the plaintiff is not doing business in the State of New York and is not required to obtain a certificate of authority required by the General Corporation Law of the State of New York authorizing it to do business within said State. The Hemingray Glass Company has transacted no business in New York State except in instances similar to the present case. The transaction in this case was conducted by mail; the contract was made in the State of Indiana, the defendant having ordered merchandise of the defendant by mail. and the letter of the defendant, which was addressed to the plaintiff ordering said merchandise, was addressed to the plaintiff’s office in Muncie, Indiana, where it was received and answered.
Therefore, the first alleged separate and distinct defense of the defendant herein is without merit as well as the alleged counterclaim, and as the defendant fails to deny any of the allegations set forth in this complaint, deponent hereby requests that a judgment be entered herein pursuant to Rule 113 of the Rules of Civil Practice for the full amount sued for herein, together with costs and disbursements of this action; and that the answer of the defendant be stricken out and that the counterclaim herein be dismissed.
FREDERICK J. LESH,
Sworn to before me this
20th day of August, 1928.
Wilma A. Williams,
Notary Public,
Delaware County,
Indiana.
My Comm. expires Dec. 5, 1928.
(Notarial seal.)
State of Indiana,
County of Delaware, ss:
I, Perry W. Mansfield, Clerk of the Circuit Court within and for said County and State aforesaid, being a Court of Record, having a common Seal, do certify that Wilma A. Williams was, at the time of the date of the Certificate of proof or acknowledgment of the annexed instrument in writing, a Notary Public in and for said County duly authorized to administer oaths and take acknowledgments to instruments in writing; that I am well acquainted with his handwriting and verily believe that the signature to said Certificate is genuine, and that the annexed instrument is executed and acknowledged according to the laws of this State.
In Testimony Whereof, I have hereunto set my hand and affixed the seal of said Court, this 20 day of August A. D., 1928.
PERRY W. MANSFIELD,
Clerk of the Delaware Circuit Court.
(Seal.)
[SAME TITLE]
State of Indiana,
County of Delaware, ss:
Frederick J. Lesh, being duly sworn, deposes and says:
That he is an officer Of the plaintiff corporation, to wit, its auditor.
That this is a supplemental affidavit made for the purpose of securing summary judgment in this action.
That the indebtedness of the defendant to the plaintiff is for invoice shipment Of May 16, 1928, amounting to $1,112.04; invoice shipment of May 18, 1928, of $1,073.87, and invoice shipment of May 22, 1928, for $1,117.78. That the defendant forwarded to the plaintiff a check dated June 18, 1928, for the sum of $2,185.91, to cover the first two shipments and invoices, as aforesaid; that this check was drawn upon the Municipal Bank, Greenpoint Branch, Brooklyn, New York; that deponent caused the said check to be deposited to the account of the plaintiff in its Bank, and that the said check came back marked “Not sufficient funds”; and that the check and the amount represented thereby has not been paid to the plaintiff by the defendant, although the same has been duly demanded.
FREDERICK J. LESH.
Sworn to before me, this
24th day Of August. 1928.
Wilma A. Williams,
Notary Public,
Delaware County,
Indiana.
My commission expires Dec. 5, 1928
County Clerk’s Ctf. attached.
Summons.
SUPREME COURT,
KINGS COUNTY.
__________________________________
HEMINGWAY GLASS COMPANY,
Plaintiff,
against
WILKENFELD BROTHERS, INC.,
Defendant.
__________________________________
To the above named Defendant:
You are hereby summoned to answer the complaint in this action, and to serve a copy of your answer, or, if the complaint is not served with this summons, to serve a notice of appearance, on the plaintiff’s attorney within twenty days after the service of this summons, exclusive of the day of service; and in case of your failure to appear, or answer, judgment will be taken against you by default, for the relief demanded in the complaint.
Dated, July 13th. 1928.
WINGATE & CULLEN.
Attorneys for Plaintiff,
Office and Post Office Address,
No. 189 Montague Street,
Brooklyn, New York.
Complaint.
[SAME TITLE.]
The plaintiff above named by Wingate & Cullen, its attorneys, complaining of the defendant above named, respectfully shows to this Court and alleges:
FIRST: That the plaintiff is a corporation organized and existing under the laws of the State of Indiana, and having its principal office at Muncie, Indiana.
SECOND: Upon information and belief that the defendant, Wilkenfield Brothers, Inc., is a corporation organized and existing under the laws of the State of New York.
THIRD: That between the 15th day of May, 1928, and the 1st day of June, 1928, the plaintiff sold and delivered to the defendant, at the defendant’s request, certain goods, wares and merchandise consisting of three carloads of ‘‘Lion’’ beer bottles.
FOURTH: That the said defendant promised and agreed to pay therefor the sum of $3,303.69, and the same were reasonably worth said sum, as follows:
Invoice shipment May 16th, 1928, $1,112.04
" " May 18th, “ 1,073.87
" " May 22nd, “ 1,117.78
_________
FIFTH: That plaintiff has demanded of the defendant payment of said sum, but that no part of said sum has been paid.
Complaint
Wherefore, plaintiff demands judgment against the defendant for $3,303.69, with interest on $1,112.04 thereof, from May 16th, 1928, on $1,073.87 thereof from May 18th, 1928, and on $1,117.78 thereof from May 22nd, 1928, besides the costs and disbursements of this action.
Dated, Brooklyn, New York, July 13th, 1928.
WINGATE & CULLEN,
Attorneys for plaintiff,
Office & P. O. Address,
No. 189 Montague Street,
Borough of Brooklyn,
City of New York.
Verified July 13, 1928 by Cyrus S. Jullien.
Answer.
[SAME TITLE.]
Defendant, by Joseph & Demov, answering the complaint, respectfully alleges:
AS AND FOR A SEPARATE AND DISTINCT DEFENSE, THIS DEFENDANT ALLEGES:
FIRST: That the plaintiff is a foreign stock corporation; that it is doing business in this state and that the contract referred to in the complaint was made within this state; that the plaintiff has not obtained the certificate of authority required by the General Corporation Law of the State of New York, to authorize it to do business within the State or to maintain this action.
AS AND FOR A COUNTERCLAIM THIS DEFENDANT, ALLEGES:
SECOND: That at all the times hereinafter mentioned the above named defendant was and still is a domestic corporation.
THIRD: Upon information and belief that the plaintiff referred to in the complaint herein as the Hemingway Glass Company, whose correct and proper name is Hemingray Glass Company, was and still is a foreign corporation organized and existing under the laws of the State of Indiana and having its principal office at Muncie, Indiana.
FOURTH: That heretofore and on or about the 14th day of September, 1927, at the City and State of New York, the plaintiff and the defendant entered into an agreement wherein and whereby it was mutually agreed between them that the plaintiff would sell and deliver to the defendant 30,000 beer bottles of 12 ounce capacity each at $3.65 per gross and 1,500 bottles of 28 ounce capacity each at $5.60 per gross, f. o. b. cars Brooklyn, New York, said bottles to be shipped as per instructions of the defendant, the entire order to be completed and delivered prior to September 1st, 1928, and the defendant on its part agreed to accept such merchandise and to pay therefor.
FIFTH: That thereafter and during the month of March, 1928, the defendant herein directed the plaintiff to deliver to him 5,000 gross of beer bottles and also 150 gross of the 28 ounce bottles and was ready, able and willing and duly offered to accept the said merchandise, pursuant to said agreement and requested the plaintiff to deliver the said 5,000 gross beer bottles and 150 gross 28 ounce bottles and thereafter duly demanded delivery of the balance of said order and the defendant has duly performed all the conditions on its part to be performed.
SIXTH: That the plaintiff herein has delivered to the defendant about 2,100 gross of beer bottles, but has failed and refused to deliver the balance of such merchandise so required to be delivered pursuant to said contract.
SEVENTH: That prior to the time of the delivery of such bottles by the plaintiff, according to the terms of said contract, the plaintiff gave notice to the defendant that it, the plaintiff, would not fulfill said agreement and repudiated the said contract and would not deliver the balance of said bottles then remaining undelivered to wit: 27,900 gross of beer bottles and 1,500 gross of 28 ounce bottles and refused to perform the said contract and deliver the said merchandise, or any part thereof.
EIGHTH: That the market price of the merchandise hereinbefore described has increased above the price mentioned in the contract hereinbefore set forth.
NINTH: That by reason of the failure of the plaintiff to deliver such merchandise or perform the conditions of the agreement on its part to be performed, the defendant has been damaged in the sum of Twenty Thousand Dollars ($20,000).
Wherefore defendant demands judgment dismissing the complaint herein and for an affirmative judgment against the plaintiff in the sum of Twenty Thousand ($20,000) Dollars, with interest thereon from the 20th day of June, 1928, besides the costs and disbursements of this action.
JOSEPH & DEMOV,
Attorneys for Defendant,
Office and Post Office Address,
No. 1431 Broadway,
Manhattan Borough,
New York City.
Verified July 27, 1928 by Elias Wilkenfeld.
Reply.
[SAME TITLE.]
The Hemingray Glass Company, the plaintiff herein, by its attorneys, Wingate & Cullen, for a reply to the alleged counterclaim contained in the answer of the defendant, respectfully alleges:
FIRST: Denies, upon information and belief, each and every allegation contained in said answer in paragraphs “Fourth,” “Fifth,” “Sixth,” “Seventh,” “Eighth’’ and “Ninth” designated as a counterclaim in the said answer of the defendant, except that the plaintiff admits that between May 15th, 1928 and June 1st, 1928, it sold and delivered to the defendant, at its request, three carloads of “Lion” beer bottles for which the defendant promised and agreed to pay the sum of Thirty-three Hundred Three and 69/100 ($3,303.69) Dollars, the reasonable value thereof, and that the defendant has failed to pay said sum, although duly demanded, and that negotiations for said contract were conducted by mail and said contract was made and accepted in Muncie, Indiana.
Wherefore, the plaintiff demands judgment against the defendant for the relief prayed for in the complaint, together with the costs and disbursements of this action, and that the counterclaim of the defendant be dismissed with costs.
Dated, Brooklyn, New York, August 17th, 1928.
WINGATE & CULLEN,
Attorneys for Plaintiff,
Office & P. O. Address,
No. 189 Montague Street,
Borough of Brooklyn,
City of New York.
Verified Aug. 17, 1928 by Platt K. Wiggins.
Correspondence.
[SAME TITLE.]
Sirs:
Please Take Notice that attached hereto is a copy of the correspondence mentioned and described in the affidavit upon motion for summary judgment herein. The originals of all letters received by the plaintiff are in our hands and we have carbon copies of all letters sent from the plaintiff to the defendant, originals of which are in your hands or in the hands of your client.
Dated, Brooklyn, New York, September 15th, 1928.
Yours etc.,
WINGATE & CULLEN,
Attorneys for Plaintiff,
Office & P. O. Address,
No. 189 Montague Street,
Borough of Brooklyn,
City of New York.
To:
Joseph & Demov, Esqs.,
Attorneys for the Defendant,
1431 Broadway,
New York, New York,
Correspondence
Copy
WILKENFELD BROS, INC.
(Pencil Note)
3/19/28
Brooklyn, N. Y. March 15, 1928.
Hemingray Glass Co.,
Muncie, Ind.
Gentlemen:
Kindly ship car of Lion Beers on March 26th.
Thanking you to give this your kind attention, we are
Very truly yours,
WILKENFELD BROS. INC.
Copy
March 19, 1928.
Wilkenfeld Brothers, Inc.,
224 North Seventh Street,
Brooklyn, New York.
Gentlemen:
The car of Lion beer bottles requested in your letter of March 15th, will go forward on the 26th, as specified.
This depletes the present Lion stock and raises the question of how many bottles you want us to manufacture and stock for the Lion people this season. We are now operating to capacity on definite orders which have been prearranged and it is important that you furnish information that we may include the Lion bottles also.
This is very important, unless we know very soon how many Lion bottles to produce it may be impossible to supply them later in the season.
Your early reply will be appreciated.
Sincerely yours,
HEMINGRAY GLASS COMPANY.
HTC.D
Copy
(Pencil note)
3-27-28.
WILKENFELD BROS., INC.
Brooklyn, N. Y. March 21, 1928.
Hemingray Glass Co.,
Muncie, Ind.
Gentlemen:
In reply to yours of March 19th, we wish you to manufacture and stock for us 5,000 gross of "Lion" beer bottles.
Trusting that this will be satisfactory to you, we are
Very truly yours,
WILKENFELD BROS. INC.
Correspondence
Copy
March 27, 1928.
Wilkenfeld Brothers, Inc.,
224 North Seventh Street,
Brooklyn, New York.
Gentlemen:
This will acknowledge receipt of your requisition for five thousand (5,000) gross of Lion beer bottles to be manufactured and stored against your requisitions. This matter must pass thru our credit department but we will endeavor to keep a sufficient quantity on hand to meet the needs of your customer without delay.
Pending decision of our credit department, I want to call your attention to the fact that you will be expected to take out and pay for all bottles on hand September 1st, 1928.
Sincerely yours,
HEMINGRAY GLASS COMPANY.
HTC.D
Copy
March 31, 1928.
(Pencil note)
Notice H. T. C.
Wilkenfeld Brothers, Inc.,
224 North Seventh Street,
Brooklyn, New York.
Attention: Mr. E. Wilkenfeld, Pres.
Gentlemen:
Referring to your letter of March 21, covering your order to manufacture and stock for you 5,000 gross of "Lion" beer bottles, and our acknowledgment of March 27, of Mr. Campbell, in which he advised that you would hear further from our credit department regarding this order.
While we are very glad to have this business, we must say to you frankly that our credit experience with you on previous business has not been at all satisfactory, owing to the fact that your remittances were not made in accordance with our settlement terms, as you invariably allowed our invoices to go past due before making settlement.
For this reason we must ask that Mr. Wilkenfeld advise us promptly if it is his intention to remit us for our shipments on this new order in strict accordance with our terms of thirty days net or 1% in ten days from date of on invoices; also if you intend to take delivery of these 5,000 gross of Lion beer bottles prior to September 1st, and if you will allow us to bill you as of September 1st, under our regular terms, for any unshipped portion of this order which we may have in stock on that date.
We will appreciate it if you will let us hear from you promptly and fully on all these points.
Yours very truly,
HEMINGRAY GLASS COMPANY.
Auditor.
FJL*H
Correspondence
Copy
WILKENFELD BROS., INC.
Brooklyn, N. Y. April 6, 1928.
Hemingray Glass Co.,
Muncie, Ind.
Gentlemen:
Received your of March 31st and in reply, wish to state that we will mail you the balance due you, on the 25th of this month.
In reference to the terms for future shipments that you mention in your letter, we shall comply with them in accordance with your request.
Very truly yours,
WILKENFELD BROS. INC.
Copy
April 10, 1928.
(Pencil Notes)
re terms on new order for
5000 gross "Lion" Beer
Bottles.
Wilkenfeld Brothers, Inc.,
224 North Seventh Street,
Brooklyn, New York.
Attention: Mr. E. Wilkenfeld, Pres.
Gentlemen:
We have your letter of April 6, with reference to terms on your order of March 21 , 1928, for 5,000 gross of "Lion" beer bottles, and note your promise to comply strictly with our terms of thirty days net, or 1% for cash in ten days on our invoices against this order.
As previously advised, our credit experience with your company has been so unsatisfactory that we have decided to extend you credit for only one carload at a time; in other words, we must have cash settlement for the last shipment made you before making you another shipment. This, of course, should be no burden on you, and we trust you will be able to discount all of our invoices applying on the order above referred to.
Please advise us if you will comply with this arrangement.
Yours very truly,
HEMINGRAY GLASS COMPANY.
Auditor.
FJL*H
Copy
Note on small slip of paper "Return to Lesh 5/7 5/8/8"
Mr. Lesh.
May 8, 1928.
Wilkenfeld Brothers, Inc.,
224 North Seventh Street,
Brooklyn, New York.
Gentlemen:
We are pleased to acknowledge receipt of your shipping specifications on Lion bottles covering one car each May 10th, 18th and 23rd. We will endeavor to make shipment on date specified.
Correspondence
In order that there be no delay, we are calling your attention to Mr. Lesh's letter of April 10th regarding credit terms.
Sincerely yours,
HEMINGRAY GLASS COMPANY.
HTC.D
Copy
May 19, 1928.
Wilkenfeld Brothers, Inc.,
224 North Seventh Street,
Brooklyn, New York.
Attention: Mr. E. Wilkenfeld, Pres.
Gentlemen:
We enclose herewith, in duplicate, our invoice B-755, covering shipment to you yesterday of carload of " Lion " beer bottles, amount $1073.87.
We mailed you a couple of days ago our invoice B-742, amount $1112.04, covering shipment of another car of " Lion" beer bottles to you on May 16.
We have another order from you for a car of these Lion beers to go forward on next Wednesday, May 23.
In accordance with previous correspondence we shall expect you to discount these invoices; that is send us remittance within ten days after their dates, with the deduction of 1% cash discount.
In this connection we wish to remind you that your $2500.00 note given us, dated February 10, 1928, will be due on May 25, and as per your recent letter we will not send this note forward for collection through our bank, but will expect your check covering same to reach us on or before May 25.
Please advise us by return mail if you will take care of these matters as above stated.
Yours very truly,
HEMINGRAY GLASS COMPANY.
Auditor.
FJL*H
Copy
May 28, 1928.
Wilkenfeld Brothers, Inc.,
224 North Seventh Street,
Brooklyn, New York.
Attention: Mr. E. Wilkenfeld, Pres.
Gentlemen:
We have your letter of May 24 enclosing check for $2500.00 to cover your note to us for same amount, dated February 10, 1928, due May 25, 1928.
We herewith return this note to you, duly marked "Paid", and thank you for this remittance.
As per our letter of May 19 we expected to also receive your remittance today covering our invoice B-742, of May 16, amount $1112.04. On a cash discount basis your remittance should have been mailed us last Saturday, May 26,
We shipped you another car on May 18, covered by our invoice B-755, amount $1073.87, and on a cash discount basis remittance for this in voice should be mailed us today.
We shall certainly expect your remittances to be made on a cash discount basis, and shall also expect you to pay within ten days our invoice B-787, dated May 22, amount $1117.78.
Trusting that your remittance for the first two cars above mentioned is already on the way to us, we remain
Yours very truly,
HEMINGRAY GLASS COMPANY.
Auditor.
FJL*H
Copy
WESTERN UNION
Muncie, Indiana, may 31, 1928
Wilkenfeld Brothers Inc
224 North 7th St.
Brooklyn, New York.
See our letter twenty eighth Have you mailed remittance our invoices may sixteenth and eighteenth Wire answer
HEMINGRAY GLASS COMPANY
ST WR
PD
Correspondence
Copy
WESTERN UNION
New York N Y June 2, 1928
(Pencil Note)
Mr. Lesh
Himingray Glass Company
Muncie Indiana
Bank made error. Redeposit our check
WILKENFELD BROTHERS
(pencil Note)
Pro Fee $ 1.15
PD
Copy
June 4, 1928
Wilkenfeld Brothers, Inc.,
224 North Seventh Street,
Brooklyn, New York.
Attention: Mr. E. Wilkenfeld, Pres.
Gentlemen:
We received your wire last Saturday noon, June 2, reading as follows: "Bank made error. Re-deposit our check."
We did not understand the meaning of this wire until this morning when our bank called us and advised that your check for $2500.00, received and deposited by us on May 28, had been protested for non-payment, with advices that you had insufficient funds to cover same. You sent us this check to cover your $2500.00 note dated February 10, 1928 due May 25, 1928.
There was $1.15 protest fees on this check, and we asked our bank to return the check and protest papers to you, with instructions to collect both the amount of the check and the $1.15 protest fees.
We think the least you could have done would have been to send us a letter confirming your wire of June 2 with an explanation of your failure to protect this check when it was returned to you, and your action in the matter only further weakens your credit standing with us.
You also have not shown us the courtesy to reply to our several recent letters with regard to settlement covering our invoices of May 16, 18 and 22.
Yours very truly,
HEMINGRAY GLASS COMPANY.
Auditor.
FJL*H
Correspondence
Copy
WILKENFELD BROS. IND.
Brooklyn, N. Y. June 8, 1928.
(Stamped)
PAID
Jun 11 1928
Hemingray Glass Co.
Hemingray Glass Co.,
Muncie, Ind.
Att. Mr. Campbell
Dear Sir:
In accordance to the telephone conversation we had today with Mr. Lummis, please find enclosed our certified check for $2500.00 to replace the one we sent you in payment for the note. We sincerely regret this incident, but feel that the wire sent you was self explanatory.
In reference to your previous letter regarding our payment of the bills, we pointed out to your Mr. Lesh that we shall try to discount our bills. If this is not possible we will pay them within 30 days.
Trusting that you will find this satisfactory, we remain
Very truly yours,
WILKENFELD BROS. INC.
(Stamped)
ENTERED
Cash Receipts
Page 377
EW:GC
(Pencil Notes)
2500.00 Bank
1.15 "
Wilkenfeld Bros 2501.15
Certified check to cover their protested check
of 5/24/1928 for $2500.00 & protest fee.
Correspondence
Copy
June 12, 1928.
Wilkenfeld Brothers, Inc.,
224 North Seventh Street,
Brooklyn, New York.
Gentlemen:
We have your letter of June 8 enclosing certified check for $2500.00 to take up the protested check #7053, dated May 24, 1928, for same amount.
We also have your check for $1.15 to cover protested fees on the protested check above referred to.
We therefore return to you herewith your protested check #7053, for $2500.00, together with attached protest papers.
We note your promise to pay our invoices within thirty days of their date, and we call your attention to the fact that our invoice of May 16, for $1112.04, will be due on next Friday, June 15; that our invoice of May 18, for $1073.87, will be due on June 17, and that our invoice of May 22, for $1117.78, will be due on June 21.
We shall certainly expect your remittances for these three invoices to be mailed to us on or before their due dates.
Yours very truly,
HEMINGRAY GLASS COMPANY.
Auditor.
FJL*H
Notice to Produce.
[SAME TITLE.]
Sirs:
Please Take Notice that you are required to produce on the hearing of a motion for judgment as demanded in the complaint and the answer to be stricken out and judgment entered herein pursuant to Rule 113, etc., the following described papers:
1. Letter dated March 19th, 1928, from the plaintiff to the defendant stating that beer bottles as requested in letter of March 15th received by the plaintiff from the defendant would go forward on the 26th as requested and that said shipment depleted the present "Lion" stock of beer bottles and raised the question of how many bottles the defendant would require the plaintiff to manufacture and stock during the current year and requesting an answer as soon as possible in respect to this matter.
2. Letter dated March 27th, 1928, addressed to the defendant by the plaintiff in reply to aformer letter which the plaintiff wrote to the defendant and dated March 21st, 1928, acknowledging receipt of the requisition of the 5,000 gross of "Lion" beer bottles to be manufactured and stored against requisitions and stating that the matter must first pass through the Credit Department and that upon the decision of the Credit Department it would be necessary for the defendant to take out and pay for all beer bottles on hand on September 1st, 1928.
3. Letter dated March 31st, 1928, written by the plaintiff and addressed to the defendant referring to the previous letter of March 21st relating to the order for the manufacture and stock of 5,000 gross of "Lion" beer bottles and stating the terms of shipment of the new order would be in strict accordance with plaintiff's terms of thirty days net or 1 per cent in ten days from the date of the invoice.
4. Letter dated April 10th, 1928, written by the plaintiff to the defendant confirming statements set forth in letter dated April 6th, 1928, written by the defendant to the plaintiff and stating that the plaintiff had noted that the defendant in reference to the terms of the defendant's order of March 21st, 1928, for 5,000 gross of "Lion" beer bottles had promised to comply strictly with the terms of the plaintiff of thirty days net or 1 per cent for cash in ten days on plaintiff's invoices against the order, and also stating that due to the fact that the plaintiff's credit experience with the defendant had been unsatisfactory that the plaintiff had decided to extend credit to the defendant for only one carload at a time.
5. Letter dated May 8th, 1928, from the plaintiff to the defendant stating that the plaintiff acknowledged receipt of the defendant's shipping specifications on "Lion" beer bottles covering one car each on May 10th, May 18th and May 23rd and that the plaintiff would endeavor to make shipments on the dates specified and also calling to the attention of the defendant, the letter between the parties dated April 10th regarding credit terms.
6. Letter dated May 19th, 1928, written by the plaintiff to the defendant stating that the enclosed invoice covered a shipment of a carload of beer bottles amounting to $1,073.87 and that it had previously mailed to the defendant an invoice amounting to $1,112.04 covering shipment of another carload of "Lion" beer bottles on May 16th and also stating that the plaintiff would send to the defendant another carload of "Lion" brand bottles to be shipped on May 23rd and that in accordance with previous correspondence the plaintiff expected the defendant to discount these invoices and send remittance within ten days afterdate with a deduction of 1 per cent cash discount.
7. Letter dated May 28th, 1928, from the plaintiff addressed to the defendant demanding payment of the invoices to date.
8. Telegram from the plaintiff to the defend ant demanding payment sent to May 31st, 1928.
9. Letter dated June 4th from the plaintiff to the defendant in respect to a check for $2,500.00 which had been protested for non-payment because of insufficient funds and complaining about the action of the defendant in permitting the check to be so protested.
10. Letter dated June 12th, 1928, from the plaintiff to the defendant stating that the plaintiff had received the letter of the defendant wherein the defendant had promised to pay the plaintiff's invoices within thirty days of their date, and calling the attention of the defendant to the fact that the invoices of May 16th, May 18th and May 22nd had not been paid and that the plaintiff expected payment thereof.
11. All other documents, notes, telegrams, letters, papers, books and writings whatsoever in your possession or control, containing any entry, memorandum or other matter in any way relating to the above case.
In case of your failure to produce any of the foregoing, secondary evidence of the contents of the same will be offered.
Dated, Brooklyn, New York, September 10th, 1928.
Yours, etc.,
WINGATE & CULLEN,
Attorneys for Plaintiff,
Office & P. O. Address,
No. 189 Montague Street,
Borough of Brooklyn,
City of New York.
To :
Joseph & Demov, Esqs.,
Attorneys for the defendant,
1431 Broadway,
New York, New York.
Answering Affidavit of Elias Wilkenfeld, Read
in Opposition to Motion.
[SAME TITLE.]
State of New York,
County of new York, ss:
City of New York,
Elias Wilkenfeld, being duly sworn, deposes and says that he is the president of the defendant herein, which corporation has a place for the transaction of business at No. 224 North 7th Street, Brooklyn, New York.
The defendant corporation has been in the bottle business for the past 12 years in the County of Kings, State of New York.
Deponent makes this affidavit in opposition to a motion for summary judgment, which motion for summary judgment is based on two affidavits of one Frederick J. Lesh, the auditor of the plaintiff.
The affidavits in support of the motion for summary judgment are made by one who has absolutely no knowledge whatsoever of the transaction in question and is based on hearsay and the basis of the said affidavits are excerpts and quotations from correspondence between the parties.
Your deponent had absolutely no dealings with the said Frederick J. Lesh, but had practically all of his dealings with one H. J. Campbell, the assistant secretary of the plaintiff corporation.
The plaintiff, a corporation organized under the laws of the State of Indiana, has brought this action to recover the sum of $3,303.69 for certain bottles delivered to the defendant in May and June, 1928. The plaintiff seeks to avoid a trial of the issues raised by the defendant's counterclaim and attempts to have the Court rule that there is nothing contained in the counterclaim which would warrant a jury passing upon the facts, and seeks so to do by an affidavit of an auditor who has had nothing whatsoever to do with the transactions in questions and who makes his affidavit on letters written by the plaintiff to the defendant and certain letters received by the plaintiff from the defendant.
Your deponent, in the verified answer served by the defendant, does not deny the receipt from the plaintiff of certain bottles in the months of May and June, 1928, aggregating $3,303.69, but as a separate defense as to the plaintiff's cause of action, specifically pleads that the plaintiff is a foreign corporation; that it is doing business in the State of New York; that the contract referred to in the complaint was made in the State of New York, and that the plaintiff has not obtained a certificate of authority to do business in the state as required by the General Corporation Law.
The answer then sets up as a counterclaim the making of an agreement between the plaintiff and the defendant on the 14th day of September, 1927, at the City of New York, wherein, among other things, it was agreed that the plaintiff would sell and deliver to the defendant 30,000 gross of beer bottles, more particularly described in the answer at $3.65 per gross and 1,500 gross of bottles of 28 ounce capacity at $5.60 per gross, which bottles were to be shipped as per instructions of the defendant and the entire order to be completed and delivered prior to September 1st, 1928.
It is further alleged in the counterclaim that the plaintiff made certain deliveries and refused to deliver the balance of the goods although requested, and that the plaintiff specifically breached the agreement and that it refused to make any further shipments, except as set forth in the answer, and then contains the further allegation that the market value of the bottles required to be delivered increased over and above the contract price by reason of which the defendant sustained considerable damage.
A reading of the affidavit filed in support of the motion for summary judgment discloses the fact that the plaintiff absolutely ignores the agreement made between the parties in September, 1927, for the delivery of this vast amount of merchandise and pays not the slightest attention to the allegations contained in the answer as to the making of this contract.
The affidavit of Frederick J. Lesh does not in any respect or anywhere in the affidavit call to the Court's attention the making of this contract and simply ignores this contract in its entirety. The moving affidavit deliberately deceives the Court in that it says that the merchandise was ordered by the defendant from the plaintiff between the 15th day of May, 1928, and the 1st day of June, 1928. This moving affidavit further states on page 2 thereof that on March 15th, the plaintiff received a letter from the defendant stating that the defendant desired a car of "Lion" beer bottles and then goes on to state the substance of certain letters which passed between the parties.
Your deponent attaches a copy of the agreement between the parties, which shows conclusively that the deliveries set forth in the complaint and in the affidavit for summary judgment are not the result of isolated instances of sales, but were deliveries made by the plaintiff pursuant to the terms of the written contract, the original of which will be presented upon the argument of this motion and a copy of which is hereto annexed.
While the affidavit made in support of the motion does not mention the making of this contract, it peculiarly does not deny that there was a contract made. The allegations in the answer are very definite and positive. It specifically sets forth a date when the contract was made. The affidavit in support of the motion for summary judgment does not deny the making of such a contract, but by silence and inuendo, it attempts to deceive the Court into believing that the merchandise set forth in the complaint were isolated sales and not deliveries on account of the contract.
The affidavit of Frederick J. Lesh further states that the transaction in this case was conducted by"mail"; the contract was made in the State of Indiana, the defendant having ordered merchandise of the plaintiff by mail, and your deponent particularly desires to call the attention of the Court that this statement contained in the affidavit of Frederick J. Lesh is not a true recital of the facts in the matter and, furthermore, your deponent emphatically states that the contract in question, upon which the counterclaim is based, was made and signed by the assistant secretary of the plaintiff corporation and the person who is in charge of their bottle sales department, right in the County of Kings, State of New York.
Perhaps it is the contention of the plaintiff in ignoring the written contract; that the said Campbell had no authority. If that is their contention, although not set forth in the moving papers, your deponent attaches a copy of a letter, dated April 25th, 1927, signed by the same Campbell, confirming an order for 4,000 gross of light green bottles. The original of this letter will be offered upon the argument of this motion.
It is rather interesting to note that there is no affidavit made by Campbell in support of the motion for summary judgment, although practically all negotiations were had with Campbell. Copies of the letters set forth in the moving papers for summary judgment have not been attached, but your deponent calls the attention of this Honorable Court to the fact that the deliveries were made by the plaintiff on account of the contract set forth in the answer and particularly calls the attention of the Court to the fact that the invoices, copies of which are hereto annexed, the originals of which will be produced upon the argument of this motion, contained the same price, the same terms and, moreover, in one particular invoice, where the original was billed at $3.90, was thereafter changed by the plaintiff to read $3.65 a gross, the price set forth in the contract.
Although the contract, which is the subject matter of the counterclaim is specifically and at length set forth in the answer, the plaintiff, in its reply, denies the making of this contract.
The moving affidavit states that on March 15th, 1928, the plaintiff received a letter from the defendant ordering a car of Lion beer bottles shipped on March 26th. The plaintiff construes this letter as a new contract, deliberately overlooking the then existing contract between the parties. It is rather strange that this letter of March 15th contains no price.
The plaintiff is not a manufacturer of Lion beer, but was simply selling bottles to the defendant and was to label these bottles as Lion bottles.
What would the plaintiff know of Lion beer unless there was a contract in existence between the parties. The same is true as to the letter of March 21st. It was incumbent upon your deponent's firm to order these bottles out before September 1st, 1928, and this was what he was attempting to do, in ordering these bottles at various times in various lots, but all of these deliveries were to be on account of the contract in existence between the parties.
The plaintiff has not called the attention of the Court in their moving papers to the letter received by the plaintiff on or about February 24th, 1928, from the defendant requesting a delivery of a carload of soda bottles on account of the contract of September 14, 1927, nor the letter of March 1st, 1928, copies of which are hereto annexed, wherein the terms of the written contract were described.
Your deponent calls the attention of the Court to the fact that the very letterhead of the Hemingway Glass Company lists H. T. Campbell as assistant secretary, bottles sales.
It is true that the defendant has not paid for the three carloads delivered in May and June, 1928. Altogether there were six carloads delivered on account of this contract — three were paid for — three were not, and the reason the last three were not paid for was that on about June 8, 1928, your deponent sent a letter to the plaintiff asking for a shipment of one car of new Lion beers at once, giving route and railroad, with a request that immediate delivery be made. Not having received this carload and having been unable to receive any further shipments, although at this time the bills for the last three cars were not yet due, your deponent, on June 22nd, 1928, called the plaintiff on the long distance telephone and spoke to Mr. Campbell and endeavored to ascertain why deliveries were not made. He was then informed by Mr. Campbell that Mr. Campbell would investigate and call him back on the long distance phone the following morning and give him an answer. On Saturday morning, June 23rd, deponent received a telephone call from Mr. Campbell at which time he was informed by Mr. Campbell that no further deliveries would be made under the contract of September 14th, 1927. Your deponent then informed Mr. Campbell that, inasmuch as he would not make any further shipments on this contract, and that the plaintiff having elected to break their contract, your deponent would stop payment on the check given on the May 16th to May 18th shipment, and would also refuse to pay the May 22nd shipment and would hold the plaintiff responsible for the damages sustained by the defendant corporation. Your deponent then stopped payment for the check given.
Your deponent has been in the bottle business for the past 12 years and knows of his own knowledge, by reason of sales and purchases made of bottles described in the contract of similar bottles that the market price during June, 1928, and thereafter are greatly in excess of the price set forth in the contract.
Your deponent has taken orders for the delivery of the bottles described in the contract and has lost thousands of dollars as a result of being unable to make deliveries by reason of the plaintiff's unwarranted refusal to make deliveries.
Your deponent respectfully submits to the Court that the counterclaim interposed in the answer is based on a written contract; that the affidavits in support of the motion for summary judgment are not based upon the facts and do not rightfully and truthfuly state the transactions between the parties, and that there is absolutely no merit whatsoever in the plaintiff's motion for summary judgment.
Your deponent further desires to call the attention of the Court to the separate defense contained in the answer as to the failure of the plaintiff, an Indiana corporation, doing business in the State of New York, making contract in the State of New York without authority of the secretary of state, as required by law.
Your deponent attaches hereto a copy of a letter showing that the plaintiff has an agent and representative, one L. A. Loomis, in the State of New York. The fact that the plaintiff is a foreign corporation is admitted; the fact that it has not obtained a certificate of authority to do business is admitted.
Your deponent attaches an affidavit of his son, who has visited the offices of the Hemingway Glass Company in the Woolworth Building, showing exactly in what manner the Hemingway Glass Company is doing business in the State of New York without authority.
The issues raised by the answer and the plaintiff's reply are as follows:
(1) Is the plaintiff corporation doing business in the State of New York?
(2) Was there a contract between the parties as set forth in the counterclaim?
(3) Was there a breach of the said contract on the part of the plaintiff? And
(4 ) If so, what damages were sustained by the defendant.
The fact that there was a contract cannot be disputed, although the plaintiff seeks now to evade the carrying out of the terms of the contract.
Even if your deponent had failed to make a payment for installment deliveries, it would still be a question as to whether the failure to make the payments was justified and if not, was it so material to permit the plaintiff to rescind its contract; but in view of the attitude taken by the plaintiff that there was no contract, the plaintiff cannot raise any such contention.
Your deponent feels satisfied that upon the argument of this motion, and from an examination of the contract in question, and further, in view of the fact that the very individual with whom this contract was made and was familiar with all of the terms had herein, has failed to make an affidavit in support of the motion for summary judgment, that the Court will deny this motion for summary judgment and permit the defendant to have his day in court and to try out the issues raised by the pleadings.
ELIAS WILKENFELD.
Sworn to before me this
26th day of September, 1928.
Charles L. Grad,
Notary Public,
N. Y. Co.
Answering Affidavit of Abraham Wilkenfeld,
Read in Opposition to Motion .
[SAME TITLE.]
State of New York,
County of New York, ss :
City of New York,
Abraham Wilkenfeld, being duly sworn, deposes and says that he is an employee of the defendant herein.
That during the month of September, 1928, deponent called at the Woolworth Building and found that the plaintiff herein was listed as one of the tenants of said premises. Deponent then went on the 21st floor and found that Room 2128 had printed thereon the name of the plaintiff herein, Hemingway Glass Company, as being an occupant of said premises.
Deponent also examined the Donnelly Red Book this month and found under the listing of "Bottle Manufacturers" the name of the plaintiff listed therein, together with the telephone number, Whitehall 3682, the address being given as the Woolworth Building.
ABRAHAM WILKENFELD.
Sworn to before me this < 27th day of September, 1928.
M. John Silve,
Notary Public,
Kings.
Answering Affidavit of Walter Wilmurt, Read
in Opposition to Motion.
SUPREME COURT,
KINGS COUNTY.
__________________________________
HEMINGWAY GLASS COMPANY,
Plaintiff,
against
WILKENFELD BROTHERS, INC.,
Defendant.
__________________________________
State of New York,
County of Kings, SS:
Walter Wilmurt, being duly sworn, deposes and says that he resides at 845 Lincoln Place, in the Borough of Brooklyn, City and State of New York.
That he is the Assistant Vice President of the Municipal Bank of the City of Brooklyn, and is in charge of the Greenpoint Branch.
That at said bank in said branch, Wilkenfeld Bros., Inc., have an account with said bank.
That on the 23rd day of June, 1928, deponent received a written notice from Wilkenfeld Bros., Inc., directing the bank not to pay check #7125 drawn to the order of the Hemingway Glass Company for $2,185.95.
That annexed hereto is a copy of said notice.
WALTER WILMURT.
Sworn to before me this
26th day of September, 1928.
J. Jennings Mahran,
Notary Public,
Kings Co.
Exhibits Referred to in the Affidavit of Elias
Wilkenfeld, in Opposition to Motion.
Established 1848
HEMINGRAY GLASS CO.
(Incorporated 1870)
INSULATORS
Munice [sic] Muncie, Indiana.
April 25, 1927.
Wilkenfeld Bros., Inc.,
224 North Seventh St.,
Brooklyn, N. Y.
Gentlemen:
In compliance with a request from Mr. Harry Zucker we are confirming herewith your order No. 13030 dated March 28, 1927, covering 4000 gross 12 oz. capacity 15 oz. weight light green bottels [sic] bottles lettered for the Lion Brewing Company.
The price $3.90 per gross, terms 1%, ten days or thirty days net, bottles to be taken out and paid for by September 1, 1927.
When the molds are completed a few samples will be submitted for your approval.
We thank you for the order and feel sure your customer will be more than pleased with Hemingray bottles and service.
Yours very truly,
H. T. CAMPBELL,
HEMINGRAY GLASS COMPANY.
HC.H
Feb. 24, 1928. Hemingray Glass Co.,
Mincie [sic] Muncie, Ind.
Gentlemen:
Kindly make us once carload of Qt. Sodas; 27 oz. Capacity and 31 oz. weight, as per our contract of September 14, 1927.
Car should consist of no more than 150 gross.
Bottles should be lettered as per sample mailed under separate cover.
Very truly yours,
WILKENFELD BROS . INC.
Mar. 1, 1928.
Hemingray Glass Co.,
Mincie [sic] Muncie, Ind.
Gentlemen:
The contract we refer to, was for 30,000 gross of light green beer bottles and 1,500 gross of quart sodas.
This contract was drawn up and accepted by your Mr. Campbell on September 14, 1927, at our office.
Very truly yours,
WILKENFELD BROS . INC.
June 8, 1928.
Hemingray Glass Co.,
Mincie [sic] Muncie, Ind.
Gentlemen:
Kindly ship one care [sic] car of New Lion Beers, at once. Ship via Nickel Plate Jersey Central, Brooklyn Eastern District Terminal.
Thanking you to see that this goes forward immediately, we remain
Very truly yours,
WILKENFELD BROS . INC.
EW.GC
Manufacturers
MUNCIE, INDIANA
March 24, 1928.
Invoice No.
8 580
Sold To.
Wilkenfeld Brothers, Inc.,
224 North Seventh St.,
Brooklyn, N. Y.
Your Order No. Letter March 15
Our Order No. 251
Terms 30 days net or 1% 10 days on net amount only.
Description Price Total
(45,530 pcs) 316.180 Gross light
Green beers lettered "lion" 3.65 1,154.06
Freight Allowed to Brooklyn on
42,062# 0.43 280.87
________
973.19
Via:-B/4 NYC-Brooklyn Eastern
District Delivery
Car NKP 95320;
BLK. WT. 42,062#
HEMINGRAY GLASS COMPANY
Manufacturers
MUNCIE, INDIANA
February 23, 1928.
Invoice No.
8 504
Sold To.
Wilkenfeld Brothers Inc.,
224-225 North Seventh St.,
Brooklyn, N. Y.
Your Order No. Feb. 6 letter
Our Order No. 147
Terms 30 days net or 1% 10 days on net amount only.
Description Price Total
(56,518 pcs) 392.486 Gross L. I.
Gr. Beers Lettered "lion" 3.90 1,530.70
Less Freight Alld to Brooklyn on
52,019# @ .43 223.68
________
1,307.02
Via: B/4 NYC-Brooklyn Eastern D 1st Dely;
Car N K P 82907
Wt. 52,019#
HEMINGRAY GLASS COMPANY
Manufacturers
MUNCIE, INDIANA
May 22nd, 1928.
Invoice No.
8 787
Sold To.
Wilkenfeld Brothers Company,
224 North Seventh St.,
Brooklyn, N. Y.
Your Order No. letter May 5
Our Order No. 402
Terms 30 days net or 1% 10 days on net amount only.
Description Price Total
(52,600 pcs) 365.278 Gross light
green lettered beers "lion" 3.65 1,333.26
Freight Allowed to Brooklyn on
50,112# @.43 215.48
________
1,117.78
Via: B/4 NYC-Brooklyn Eastern Dist. Term;
Car CCC & STL 43941;
Bulk Wt. 50,112#
HEMINGRAY GLASS COMPANY
Manufacturers
MUNCIE, INDIANA
May 18, 1928.
Invoice No.
8 755
Sold To.
Wilkenfeld Brothers Inc.,
244 North Seventh Street,
Brooklyn, N. Y.
Your Order No. letter May 3
Our Order No. 401
Terms 30 days net or 1% 10 days on net amount only.
Description Price Total
(50,540 pcs) 350.972 Gross light
green lettered beers "lion" 3.65 1,281.05
Freight Allowed to Brooklyn on
48,181# @.43 207.18
________
1,073.87
Via: B/4 NYC-Brooklyn Eastern Dist. Term;
Car CCC & STL 5169;
Bulk Wt. 48,181#
HEMINGRAY GLASS COMPANY
Manufacturers
MUNCIE, INDIANA
March 14th, 1928.
Invoice No.
8 552
Sold To.
Wilkenfeld Brothers Inc.,
224 North Seventh Street,
Brooklyn, N. Y.
Your Order No. Let. Feb. 28
Our Order No. 196
Terms 30 days net or 1% 10 days on net amount only.
Description Price Total
(45,108 pcs) 313.24 Gross light
green beers lettered "lion" 3.65 1,143.36
Freight Allowed to Brooklyn on
41,679# @.43 179.22
________
964.14
Via: B/4 NYC-Brooklyn Eastern Dist. Dely;
Car NK P 84697#
Blk Wt. 41,679#
Brooklyn, New York.
HEMINGRAY GLASS COMPANY
Manufacturers
MUNCIE, INDIANA
May 16, 1928.
Invoice No.
8 742
Sold To.
Wilkenfeld Brothers, Inc.,
214 North Seventh Street,
Your Order No. Letter April 27
Our Order No. 350
Terms 30 days net or 1% 10 days on net amount only.
Description Price Total
(52,003 pcs) 361.132 Gross light
Green "Lion" Beer Bottles 3.65 1,318.13
Freight Allowed to Brooklyn on
47,928# @.43 206.09
________
1,112.04
Via: B/4 NYC-Brooklyn Eastern Dist. Term;
Car CCC & St. L. 54804;
Bulk Wt. 47,928#
Sept. 14 1927 .
Hemingray Glass Company
Muncie, Indiana
Gentlemen:
Please manufactur and ship to us under the terms and conditions stated below, the following bottles:
Gross Color Shape Finish Lettering Basis of Basis of Price
Capacity Weight Per Gross
30,000 light export crown as sample 12 oz. 14 z 3.65
green New York
1,500 light appol crown as sample 28 oz 31 z 5.60
green New York
The following conditions govern our placing and your acceptance of this contract:
Terms:
1% 10 days from date of invoice, thirty days net. In this connection, should you have reason to doubt our credit responsibility you may require payments in advance.
F. O. B. Cars
Brooklyn, Loaded, Bulk.
Shipments:
Bottles are to be shipped as we may instruct, except that reasonable notice will be given you.
Quality:
All bottles are to be of good commercial quality, average breakage in first filling not to exceed 2%.
Completion:
We agree to take all bottles prior to September 1, 1928. In the event of our inability to do so, any unshipped portion remaining on that date must be paid for by September 10, 1928. in order to secure cash discount of 1%. Otherwise, payment in full will be made on October 1, 1928. Free storage will be allowed on any unshipped balance until March 1, 1929. Thereafter 1%, of the value of such unshipped portion will be assessed and payable at the end of each month. This charge to cover storage, insurance and handling.
Limitation:
The execution of this contract is contingent upon strikes, fires, accidents and other contingencies beyond your control.
Remarks:
All other negotiations, oral or otherwise, are hereby merged into this contract.
These bottles for New York, Philadelphia and Jersey City territory delivery only.
Dated and signed in duplicate at this 14 day of Sept. 1927.
WILKENFELD BROS. Inc.,
By E. WILKENFELD, Pres.
Accepted:
The Hemingray Glass Company
By H. T. Campbell
CERTIFICATE OF CERTIFICATION
23483
State of New York)
County of Kings ) SS.: ___________January 29th___________ 1929
I, WILLIAM E. KELLY, Clerk of the County of Kings and Clerk of the Supreme Court of the State of New York in and for said County (said Court being a Court of Record) DO HEREBY CERTIFY that I have compared the annexed with the original _______Papers on Appeal_____ filed in my office _____________________________ and that the same is a true transcript thereof and of the whole of such original.
In Testimony Whereof, I have hereunder set my hand and affixed the seal of said County and Court, this ______29th_____ day ________January.______ 1929
_______Wm . E. Kelly______ Clerk
Pay CASHIER _____Nineteen and 70/100 (19.70____ DOLLARS
_______Leek________ Company
RECEIVED _____Nineteen and 70/100 (19.70____ DOLLARS
_______J. R. C.________ Cashier
To be argued by
LAZARUS JOSEPH, Counsel.
SUPREME COURT
APPELLATE DIVISION — SECOND DEPARTMENT.
_______________________________________
HEMINGWAY GLASS COMPANY,
Plaintiff-Respondent,
AGAINST } Appeal from judgment and order.
WILKENFELD BROTHERS, INC.,
Defendent-Appellant.
_______________________________________
APPELLANT'S BRIEF.
Statement .
This is an appeal by the defendant from an order made, under Civil Practice Rule 113, by Mr. Justice Humphrey, striking out the defendant's answer containing an affirmative defense and counterclaim, dismissing the counterclaim and granting summary judgment in favor of the plaintiff and from the judgment entered pursuant to said order against the defendant in the sum of $3,405.27 (fols. 2, 3).
FACTS.
Pleadings.
Plaintiff sues to recover for goods sold and delivered (fol. 52) .
The defendant in its answer alleges as a separate defense that the cause of action set forth in the complaint is based upon a contract entered into in the State of New York; that the plaintiff is a foreign corporation, unlicensed to do business in New York; and that the plaintiff is doing business in this State (fol. 50). The answer also sets forth as a counterclaim that on September 14th, 1927, at the City of New York, the parties entered into a contract whereby the plaintiff sold and agreed to deliver to the defendant 30,000 gross of certain beer bottles at certain prices, delivery to be completed prior to September 1st, 1928 (fols. 60-61); that during the month of March, 1928, the defendant demanded the delivery of 5,150 gross and was ready, able and willing and duly offered to accept the same in accordance with the aforesaid agreement and thereafter duly demanded the delivery of the balance of said order; that the defendant duly performed all the conditions on its part to be performed; that the plaintiff only delivered about 2,100 gross and failed and refused to deliver the balance (fols. 62-63); that prior to the time for the completion of the delivery thereof, the plaintiff notified the defendant that it would not fulfill the agreement and repudiated the contract; that the market price of the said merchandise increased and by reason thereof the defendant was damaged in the sum of $20,000.00 and demands judgment dismissing the complaint and for an affirmative judgment in the sum of $20,000 with interest (fols. 62-65).
The plaintiff's reply denies the material allegations of the complaint except it admits making certain deliveries between May 15th and June 1st, 1928 (fol . 68).
Motion Papers.
Upon the issues raised, as aforesaid, plaintiff moved under C. P. R. 113 for summary judgment and to strike out the separate defense and the counterclaim (fol. 20).
The plaintiff's application is based upon two affidavits by its auditor Mr. Lesh who admits having no personal knowledge of the transaction (fol. 23). The affidavits are verified August 20th (fols. 22-40) and August 24th, 1928 (fols. 46-48).
Mr. Lesh alleges that his knowledge is based upon his participation in the negotiations, correspondence, records and files of the plaintiff corporation (fol. 23); that this action has been instituted to recover $3,303.69 for goods sold and delivered pursuant to a letter of the defendant dated March 15th, 1928 (fols. 23-25); that on April 10th, 1928, plaintiff wrote to the defendant limiting its credit to only one carload (fol. 29), thereby demanding that the defendant anticipate payment of invoices (fol. 30); that demands have been made for payment upon the defendant and because these demands were not met the plaintiff failed to ship any more merchandise (fols. 33-35). He further alleges that the defendant's officers (without naming them) stated to the plaintiff's representative (without naming him or attaching the affidavit of such party in corroboration thereof) that the plaintiff should have manufactured and had ready for delivery the bottles as per contract and because it had not done so the plaintiff was guilty of a breach (fol. 36). He also states that the plaintiff refused to make shipments by reason of non-payment for goods already shipped (fol. 38). He fails to deny that the plaintiff obtained no permission to do business in this State (fol. 39), but alleges that the plaintiff transacted no business in New York except in instances similar to the present case; that the contract was made in Indiana (fol. 40) and that a check issued by the defendant to the plaintiff in June, 1928, came back marked "Insufficient funds" (fol. 48). He fails to attach to the moving paapers [sic] papers the check.
Opposing Affidavits.
In opposition to the motion, the defendant submitted affidavits by Elias Wilkenfeld, Abraham Wilkenfeld, and Walter Wilmurt, vice-president of the Municipal Bank, upon which the aforesaid check was drawn (fols. 124-159), the correspondence between the parties (fols. 160-184), and the contract of September 14th, 1927, alleged in the counterclaim (fols. 187-192).
The affidavit of Mr. Wilmurt, vice-president of the Bank, contradicts Mr. Lesh to the extent that it shows that the check was returned because the defendant had stopped payment there of (fol. 159).
The affidavit of Mr. Elias Wilkenfeld alleges that the defendant has been in the bottle business in Kings County, New York, for the past 12 years (fol. 125); that Mr. Lesh, plaintiff's auditor, had no knowledge whatsoever of the dealings between the parties hereto and did not participate in said transaction; that the dealings were with one H. J. Campbell, assistant secretary of the plaintiff (fols. 125-126); that the plaintiff is an Indiana Corporation ; that it seeks to avoid a trial of the issues raised by the counterclaim only upon an affidavit based upon the conclusions of one who has no personal knowledge of the transactions which is based upon hearsay (fol. 127); that the complaint and the motion papers for summary judgment ignore the written agreement between the parties that was entered into on September 14th, 1927, for the delivery of the large amount of merchandise notwithstanding the fact that the same is in writing, signed by the plaintiff's secretary, is dated September 14th, 1927, and is attached to the answering affidavits (fols. 132-134; 187-192); that the moving papers intentionally avoid any mention of said contract and do not deny the existence thereof (fol. 135); that the allegation in Mr. Lesh's affidavits are untrue in that the said contract was actually entered into and signed by the plaintiff's secretary in New York; that the said secretary is in charge of the plaintiff's bottle sales department and had authority to enter into said contract as appears by other correspondence signed by the said Mr. Campbell whose affidavit the plaintiff failed to submit or make any explanation for its omission (fols. 137-138); that although the plaintiff attempts to construe the letter of March 26th as a new contract by deliberately overlooking the then existing contract of September 14th, 1927, said letter is merely a demand for a shipment on account of the contract of September, 1927 (fols. 140-141); that the plaintiff does not manufacture Lion beer but simply sells bottles and labels the said bottles in accordance with the specifications (fol. 141); that if the contract of September 14th, 1927, were not in existence, the plaintiff would not have known merely from the defendant's letters what bottles were required or how they were to be labeled (fols. 141-142).
The said affidavit also calls the Court's attention to the fact that the defendant's letter to the plaintiff was only a request for a shipment on account of the contract of September 14th, 1927, which is the basis of the counterclaim (fols.142-143); that the letter of March 1st, 1928, likewise refers to the contract of September, 1927 (fol. 165). The defendant admits that it did not pay for the three car loads delivered in May and June, 1928; that six carloads were delivered on account of said contract, three of which were paid for and the balance was not paid because the plaintiff was in default, having failed and refused to make any further shipments (fol. 144); that over the long distance telephone he spoke to Mr. Campbell, plaintiff's secretary, who promised to investigate the reason for the non-shipment and was later informed by a similar telephone call on June 2nd, 1928, by Mr. Campbell that the plaintiff would make no further deliveries (fol. 145); that the defendant then told Mr. Campbell that inasmuch as the plaintiff breached its contract it would stop payment on the check given for the May 16th and May 18th shipments and would not pay the May 28th shipment and would hold the plaintiff liable for damages; and that there upon the defendant stopped payment on the check already given (fol. 146).
The contract (fol. 188) provides for payment upon the expiration of thirty days after date of invoice. On June 2nd, when plaintiff breached the contract and stated that it would make no further shipments, the invoices of May 16th to 28th were not due and defendant was justified in refusing payment.
The aforesaid affidavit also alleges that the market price of the bottles increased considerably over the contract price in June, 1928; that the defendant had taken orders for delivery of bottles from its customers and lost many thousands of dollars as a result of the plaintiff's default and unwarranted refusal to make deliveries; that the counterclaim interposed is based upon a written contract; that the motion for summary judgment is not based upon facts and there is no merit to the plaintiff's motion (fols. 147-148).
The affidavit also alleges that the plaintiff has an agent and representative, Mr. L. A. Loomis, in the State of New York; that the plaintiff did not obtain a certificate of authority to do business in this State; that the defendant's son visited the offices of the plaintiff in the Woolworth Building, New York City (fol. 150) and summarizes the issues raised by the pleading to be one whether the plaintiff is doing business without authority in New York, whether a contract was entered into between the parties, the breach and resulting damages, calls attention to the fact that inasmuch as the contract was in writing and there is no denial of its existence or authenticity and the defendant's reason for non-payment is amply explained and inasmuch as no affidavit is submitted by any person having personal knowledge of the facts, that the defendant is entitled to have its day in Court to try the issues, raised by the pleadings, upon the merits and that the motion should be denied (fols. 151-153).
The affidavit of Abraham Wilkenfeld alleges that he called at the Woolworth Building in New York City, found the plaintiff listed as one of the tenants therein; that he went to the 21st floor and found on the door of room 2128, the name of the plaintiff as the occupant of said premises; that he examined the Donnelly Red Book, which is a telephone directory in the Borough of Manhattan, New York City, and found under the listing of bottle manufacturers the name of the plaintiff together with the telephone number "Whitehall 3682" and the address as the Woolworth Building (fol. 155).
The correspondence attached to the affidavits submitted in opposition to the motion (fols. 160-168) and the copy of the written contract between the parties dated September 14th, 1927 (fols. 187-192) fully substantiate defendant's cause of action as set forth in the counterclaim.
While the plaintiff attempted to justify its refusal to deliver any further merchandise by reason of the defendant having stopped payment on the check and its refusal to pay one of the bills, it is apparent from the reading of the affidavits and proofs submitted in opposition to the motion, which is not denied or controverted by the person with whom the transaction was had, that there was no justification for the plaintiff's breach of the provisions of the contract on its part to be performed. It is also apparent that the defendant refused payment merely for the purpose of bringing the plaintiff within the jurisdiction of this State so that it could sue and recover on its counterclaim without being obliged to go to the jurisdiction of the Indiana Courts for relief. At all events there were real issues raised which the Court at Special Term had no right to determine merely upon motion papers and thereby deprive the defendant of a trial upon the merits and of its day in Court.
POINT I.
The moving papers are fatally defective.
C. P. R. 113 (2).
Norwich Pharmacal Co. v. Barrett, 205 A. D. 749.
That the plaintiff and the defendant entered into the written contract of September, 1927, is not disputed (fol. 187). The contract was made and executed on behalf of the plaintiff by its secretary, Mr. Campbell, and Mr. Lesh, the auditor, had absolutely nothing whatsoever to do therewith. It therefore follows that the only matter which is within the personal knowledge of the auditor, Mr. Lesh, was the alleged failure on the part of the defendant to pay bills when demanded. As to the merits of the controversy, the existence of a contract, who breached the same, Lesh has no personal knowledge. All these facts were within the personal knowledge of Campbell who significantly remains silent.
Respondent relies solely upon the affidavits of this auditor, Lesh, whose allegations are purely conjecture and hearsay and fails to explain the absence of Mr. Campbell's affidavit.
The courts have uniformly refused to grant applications for summary judgment upon affidavits based upon information and belief. They have insisted that applications for summary judgment must be based upon affidavits of the parties who had the actual knowledge of the facts. C. P. R. 113 (2) so specifically provides.
In this case at bar, the plaintiff has deliberately refrained from producing any affidavit from Campbell, the only person who was familiar with all of the facts in the case and who is charged with having made the contract.
Under similar circumstances in the Norwich case, supra, where as here the application was based upon the affidavit of one of the officers who did not have personal knowledge of the facts and where the officer who had the personal knowledge refrained from making any affidavit, the Court held that this was insufficient and in refusing to grant summary judgment at 298 N. Y. S., page 299, says:
"The plaintiff presented two affidavits in support of a motion, one by an officer of the plaintiff claiming to have knowledge as to the condition of incoming shipments and supervision over shipments of goods by the plaintiff and another by the attorney for the plaintiff * * * the power of the Court upon application for summary judgment should be exercised with care and not extended beyond its just limits * * *. We think that the power of the Court was exercised in this case with doubtful propriety, considering the affidavits presented by the plaintiff and the doubtful probabilities as to whether the affiants for the plaintiff had the personal knowledge which the rule requires."
The rule which permits a court and jury to infer from failure to produce a witness who concededly has knowledge of the facts, that if such witness were produced his testimony would not corroborate the claims of the party, in whose employ he is, is applicable to the case at bar. By the failure of the respondent to produce any affidavit from Campbell , the only inference that may be adduced is that Campbell would testify that there was a contract in existence as alleged in the counterclaim and that such contract had been breached by the respondent and not by the appellant.
The moving papers being defective, the Court erred in granting the motion upon the affidavit of an officer who did not have personal knowledge of the matters in dispute and the order and judgment appealed from should be reversed.
POINT II.
Issues of fact are raised by the pleadings and the affidavits submitted upon the motion and the defendant was entitled to a trial upon the merits.
The pleadings and affidavits clearly indicate that issues of fact triable by a jury exist and the motion for summary judgment should have been denied.
Munoz & Co. v. Savannah, 193 N. Y. S. 422.
Friedman et al v. Kamener, 203 A. D. 687.
J. R. Melcher, Inc. v. Graziano, 512 A. D. 425.
Rahe Match Co. v. World Match Corporation, 211 N. Y. S. 425.
Cook v. Bauman, 217 N. Y. 187.
An examination of the record discloses that the following triable issues have been raised:
1. The existence of the contract of September 14th, 1927;
2. Who breached the said contract;
3. Whether any damages were sustained by the defendant and if so the amount there of;
4. Whether the non-payment of the invoices of May, 1928, by defendant, upon demand, justified the plaintiff in cancelling the contract; and
5. Whether the plaintiff, a foreign corporation, is doing business within the State of New York, without a license.
Gen. Corp. Law, Sect. 16-C.
These issues having been raised, the Court was not justified in granting summary judgment.
The danger of abuse of rule 113 of the Civil Practice Rules has been recognized by the Courts and they are exercising great caution when motions of this character are brought before them. This is clearly indicated in the cases cited above and especially so in the Munoz case, supra, where the Court says:
"This rule, new in our practice, is a two edged weapon-useful if it precludes the interposition of defenses, for delay, but dangerous if it deprives a defendant of the opportunity to have a trial of seriously contested questions of fact or law. It is clear to me that it was not the intention of the makers of the rule that the court should try out contested issues in an action upon affidavits, although, from the numerous motions under it brought before me during this term, a contrary opinion seems to prevail in many quarters. A misuse of the privilege of the rule would be an invasion of the right to a jury trial * * * a right which may not lightly be set aside. I am mindful, in order to curb that the practices of putting in sham defenses for purposes of delay, of the necessity for some provision which shall go further than the old rule to strike out a pleading, or be demurrer to require a new one. But there is grave danger in practice of swinging too far in the opposite direction of making undue haste at the expense of substantial rights. I believe — if the defense shows there is a triable issue — that the defendant should have his day in the proper forum. Before he is deprived of that right, it should be clear to the court on a motion of this kind that there is no real defense on the question of fact, and no defense in law such as could have been raised formerly by demurrer. Where a defendant makes what appears to be a bona fide defense, or sets forth a cause of complaint against plaintiff in the nature of a counter claim, he should be and is entitled to unconditional leave to defend." (Italics ours.)
In the Melcher case supra, the facts are almost identical with the case at bar. There as here the suit was for goods sold and delivered, the defendant admitted the sale but set up a counterclaim for damages. The Court held that an issue triable by a Court and jury was raised by the counterclaim and reply and that the defendant was entitled to have his day in Court and the motion for summary judgment was denied.
The Melcher and Friedman cases are directly in point for the appellant in this case. Under the rules as laid down in these cases the appellant was entitled to a denial of the motion be cause the papers showed a triable issue.
In the case at bar, there are several triable issues which not only involve documentary proof but oral testimony as well. Even, if we were to admit the allegations of the respondent that the defendant failed to make payment for the installments and overlook the fact that under the contract the defendant had 30 days within which to pay, there still would be a question of fact to be determined by a jury as to whether such a breach entitled the respondent to cancel the entire contract as to the merchandise remaining undelivered.
Personal Property Law, Section 126, provides:
"2. When there is a contract to sell goods to be delivered by stated installments, which are to be separately paid for, and the seller makes defective deliveries in respect of one or more installments, or the buyer neglects or refuses to take delivery of or pay for one or more installments, it depends in each case on the terms of the contract and the circumstances of the case whether the breach of contract is so material as to justify the injured party in refusing to proceed further and suing for damages for breach of the entire contract, or whether the breach is severable, giving rise to a claim for compensation, but not to a right to treat the whole contract as broken."
Miller v. E. M. Sergeant Co., 191 A. D. 814.
Helgar v. Warner's, 222 N. Y. 449,
Hadfield v. Colter, 170 N. Y. S. 643.
In the Miller case the plaintiff sued for an installment of merchandise delivered and the defendant counterclaimed for damages for breach by the plaintiff in failing to deliver all of the merchandise. The plaintiff contended that the defendant could not recover because it had failed to meet the payments promptly. The Court held that whether the breach was sufficient to warrant the plaintiff in refusing to make further deliveries was a question of fact to be determined.
In the Helgar case, the Court of Appeals held that where a vendor of goods to be delivered in installments, which are to be separately paid for, fails to receive payment of an installment it may sue for the price but that his right of election to declare the contract at an end depends upon a question whether the default is so substantial and important as in truth and in fairness to defeat the essential purpose of the parties and that such question is one of fact to bedetermined by a jury.
In the Helgar case, Judge Cardoza in speaking for the Court of Appeals at page 452 says:
"The rights of vendor and vendee upon the breach of an installment contract are now regulated by statute. The rule is to be found in section 126, subdivision 2, of the statute governing sales of goods * * * The statute thus establishes a like test for vendor and for vendee * * * We have established a new test, which weighs the effect of the default, and adjusts the rigor of the remedy to the gravity of the wrong. 'It depends in each case on the terms of the contract and the circumstances of the case,' whether the breach is 'so material' as to affect the contract as a whole' * * * The vendor who fails to receive payment of an installment the very day that it is due, may sue at once for the price. But it does not follow that he may be equally precipitated in his election to declare the contract at an end (cases cited). That depends upon the question whether the default is so substantial and important as in truth and in fairness to defeat the essential purposes of the parties."
In the Hadfield cases supra, the facts are very similar to the case at bar. The Court held that the defendant's contention was correct, that inasmuch as the plaintiff had breached the contract the defendant was not required to make payment for the merchandise delivered as a prerequisite to recover for breach of contract.
So, in the case at bar, it clearly appears from the foregoing decisions that real issues were raised which required a trial and that the Court below had no right to attempt a determination of the issues upon motion papers.
The Court had no right to determine the truth or falsity of the allegations contained in the affidavits submitted pro and con on the motion for summary judgment.
In Adler v. Wiener, 197 N. Y. 599, the Court lays down the rule as follows:
"It is not within the Court's province on a motion for summary judgment to determine the truth or falsity of the allegations contained in the affidavits submitted."
And in Cook v. Bauman, 217 N. Y. S. 187, the Court says:
"If the affidavits submitted in opposition state facts which, if true, would constitute a defense, the motion cannot be granted. It is immaterial whether the plaintiff denies those statements, or whether they remain undenied. In neither case can the motion be granted."
If the facts contained in the affidavits submitted on behalf of the appellant, if established at the trial, entitled it to recover, the Court had no right to strike out the counterclaim or the affirmative defense and the Court below was not permitted to determine the issues or try the case upon affidavits but was under such circumstances bound to deny the motion for summary judgment.
It appearing from the pleadings and the opposing affidavits that there exists the issues set forth in the allegations of the separate defense and counterclaim, the motion for summary judgment should have been denied.
POINT III.
The counterclaim being for unliquidated damages, Rule 113 does not apply and the Court therefore erred in striking out the counterclaim.
Norwich Pharmacal Co. v. Barrett, 205 A. D. 749;
Schwed v. E. N. Kenedy, Inc., 220 A. D. 189;
Jos. Mague v. Levine, 247 N. Y. 20;
Apfel v. Auditore et al, 216 N. Y. S. 795 (A. D. 1st Dept.)
The defendant's counterclaim is based upon the failure of the plaintiff to comply with a written contract for the sale and delivery of merchandise. The claim being for breach of a contract which does not prescribe the amount of damages, it is essentially an unliquidated claim.
Rule 113 therefor does not apply to any action of this character.
That part of the motion which applies to the counterclaim must be construed under the same situation as if the counterclaim was the complaint and the reply the answer. In an action for damages for breach of contract, rule 113 does not apply. The same ruling applies where the breach of contract is set forth in the counterclaim. In neither case is rule 113 applicable.
This very question came up recently before Mr. Justice Humphrey who made the order in this case.
F. B. & W. Realty Corp. v. Rubano, N. Y. Law Journal, Feb. 1, 1929.
The Learned Justice in the decision above referred to recognized the fact that rule 113 does not apply in actions for breach of contract even though it is contained in the counterclaim and that it only applies in cases specifically within the rule, where it is a claim for liquidated damages, and denied the motion for summary judgment on the counterclaim for that very reason. There the Learned Justice says:
"Two motions, one by plaintiff to strike out the answer and counterclaim of the defendant Rubano. The action is one to recover the down payment and impress a lien for the repayment thereof by the purchaser under a contract for the purchase of real estate. The answer of the defendant Rubano admits the making of the contract, but alleges that a fraud was practiced upon her in the making thereof, resulting in her damage, with a counterclaim against the plaintiff and additional parties who were brought in as defendants for damages due to the alleged fraud upon bar. This may not be determined under the provisions of Rule 113 of the Rules of Civil Practice, because it is not 'in an action to recover a debt or liquidated demand' as contemplated by that rule. The same principal is applicable in the motion of the other defendants to strike out the answer of the defendant Rubano as against them. Motions denied."
The language used in the decision above stated is clearly applicable to the case at bar and under it the appellant herein is entitled to a reversal of the order and judgment appealed from.
It is quite evident that the learned court below overlooked the merits and issues involved and rendered a verdict in favor of the plaintiff without justification either under the facts or under the rules and decisions applicable to the case at bar.
Rule 113 was promulgated for the purpose of permitting a litigant to obtain judgment without a trial where there was no defense to the action. But it was never intended to be used to deprive a litigant of his day in Court. It is not to be used as a measure to weigh the evidence which will be produced. That is one of the things which it is forbidden to be done on motions of this character. So long as it appears that an issue is raised, the Court is in duty bound to permit the litigant to try out the issues in a formal manner and not upon affidavits submitted.
The rule is laid down in the Mogul case by Judge Cardoza in the following words:
"If the measure of the recovery is the loss suffered by the damage, now unliquidated, must be proved and the summary remedy must fail."
The damages claimed by the defendant in its counterclaim is unliquidated and therefore the action set forth in the counterclaim was not one under which summary judgment could be granted.
To use the language of Mr. Justice Humphrey in the Realty Corporation case supra "this (granting of a summary judgment) may not be determined under the provisions of Rule 113 of the Rules of Civil Practice, because it is not in an action to recover a debt or liquidated demand as contemplated by that rule".
POINT IV.
The order and judgment appealed from should be reversed with costs to the appellant and the motion denied with costs.
The moving papers being insufficient, and the defendant-appellant having by its answer and affidavits raised triable issues as to its affirmative defense and counterclaim, it is entitled to a trial before the Trial Court and a jury upon evidence to be submitted in a proper manner. A determination of the issues upon the unsupported affidavit of the plaintiff's auditor who has no personal knowledge of the facts is not permitted either under the rules, laws or decisions of this state.
Respectfully submitted,
JOSEPH & DEMOV,
Attorneys for Respondent
To be argued by
PLATT K. WIGGINS,
Of Counsel
Supreme Court
Appellate Division-Second Department
_______________________________________
HEMINGRAY GLASS COMPANY,
Plaintiff-Respondent,
against }
WILKENFELD BROTHERS, INC.,
Defendent-Appellant.
_______________________________________
PLAINTIFF-RESPONDENTS BRIEF
Statement of Facts
This is an appeal from a judgment entered herein in the office of the Clerk of the County of Kings on October 31, 1928, in favor of the plaintiff and against the defendant in the sum of Thirty four Hundred Five and 27/100 ($3405.27) Dollars, and also from an order herein dated October 26, 1928, entered in the office of the Clerk of the County of Kings on October 27, 1928, granting the plaintiff's motion to strike out the answer of the defendant and the affirmative defense and counterclaim contained in said answer and dismissing the said counterclaim and for summary judgment in favor of the plaintiff for the relief demanded in the complaint. The order also provided that judgment enter against Hemingray Glass Company, correcting an error in referring in the complaint to the plaintiff as Hemingway Glass Co.
The action is for goods sold and delivered consisting of three carloads of " Lion" beer bottles. This merchandise was ordered by the defendant from the plaintiff between May 15, 1928, and June 1, 1928, and delivery was made of said three carloads, and the defendant promised and agreed to pay therefor the sum of Thirty-three Hundred Three and 69/100 ($3303.69) Dollars, which was demanded but not paid.
The action was begun by the service of a summons and verified complaint on July 13, 1928. Issue was joined by the service of its answer by the defendant on August 17, 1928. The answer contained a counterclaim to which the plaintiff replied.
All the negotiations between the parties relating to the sale and delivery of the goods was conducted by letter. These letters are made a part of the moving papers and printed in the case on appeal. These letters summarized show the following: On March 15, 1928, the plaintiff received a letter from the defendant stating that the defendant desired a car of "Lion" beer bottles shipped on March 26. On March 19 the plaintiff wrote the defendant stating that the beer bottles as requested in the former letter would go forward on the 26th and that such shipment depleted the present "Lion" stock of beer bottles and raised a question of how many beer bottles the defendant would require the plaintiff to manufacture and stock for the defendant during the current season, and answer was requested. On March 21 the plaintiff received a letter from the defendant in reply to the former letter wherein the defendant requested the plaintiff to manufacture and stock five thousand (5,000) gross of "Lion" beer bottles. On March 27 and in reply to the former letter, the plaintiff wrote the defendant acknowledging receipt of the requirement of five thousand (5,000) gross of "Lion" beer bottles to be manufactured and stored against requirement, and stated that the matter must first pass through the credit department of the plaintiff corporation. On March 31, the plaintiff again wrote the defendant referring to the previous letter of March 21 relating to the order for the manufacture and stock of the beer bottles, and stated that the terms of the shipment of the new order would be in strict compliance with the plaintiff's terms of thirty days net or one (1%) per cent in ten days from the date of invoices. The defendant replied to this letter on April 6 and stated that in reference to the terms for the future shipment, that the terms mentioned by the plaintiff in its letter of March 31 would be complied with, that is, remittance for shipment on the new order thirty days net or one (1%) per cent in ten days from the date of invoices. On April 10 the plaintiff confirmed this by letter to the defendant stating that the plaintiff has noted that the defendant, in reference to the terms of the defendant's order of March 21, 1928, for five thousand (5,000) gross of "Lion" beer bottles, had promised to comply strictly with the plaintiff's terms of payment, to wit, thirty days net or one (1% ) per cent for cash in ten days on the plaintiff's invoices against the order; and further stated, that due to the fact that the plaintiff's credit experience had been unsatisfactory, the plaintiff had decided to extend the defendant's credit for only one carload at a time. In other words, the plaintiff must be paid for the last shipment before a new shipment would be made on credit.
Pursuant to this agreement arrived at between the parties by means of the correspondence as aforesaid, the plaintiff shipped to the defendant and sold and delivered to it at the defendant's request three carloads of "Lion" beer bottles, and the defendant promised and agreed to pay therefor as follows: Invoice shipment May 16, 1928, Eleven Hundred Twelve and 04/100 ($1112.04) Dollars; invoice shipment May 18, 1928, One Thousand Seventy-three and 87/100 ($1073.87) Dollars; invoice shipment May 22, 1928, Eleven Hundred Seventeen and 78/100 ($1117.78) Dollars, totaling Thirty-three Hundred Three and 69/100 ($3303.69) Dollars, the payment of which has been duly demanded but refused.
Correspondence as to the matter of demand of payment shows the following: On May 19, 1928, the plaintiff wrote the defendant stating that the enclosed invoice covered a shipment of a carload of beer bottles amounting to One Thousand Seventy-three and 87/100 ($1073.87) Dollars, and that it had previously mailed to the defendant an invoice amounting to Eleven Hundred Twelve and 04/100 ($1112.04) Dollars covering previous shipment of a carload of "Lion" beer bottles on May 16, and also stated that the plaintiff would send to the defendant another carload of "Lion" beer bottles to be shipped on May 23; and stated further that, in accordance with the previous correspondence between the parties, the plaintiff expected the defendant to discount these invoices and to send remittance within ten days after date with the deduction of one (1%) per cent cash discount. On May 28 the plaintiff again wrote the defendant demanding payment of the invoices to date. On May 31 the plaintiff telegraphed the defendant to pay. On June 4 the plaintiff wrote the defendant regarding a check for Twenty-five Hundred ($2500) Dollars which had been protested because of insufficient funds, and complaining about the action of the defendant in permitting the check to be so protested. On June 8th the defendant wrote the plaintiff stating in reference to the previous letter requiring payment of the bill, that it would try to discount the bills, and if not, pay within thirty days. On June 12 the plaintiff again wrote the defendant stating that it had received the letter of the defendant promising to pay, and calling the attention of the defendant to the fact that the invoices of May 16, May 18 and May 22 had not been paid and expected payment of said sums. Said invoices have never been paid. The defendant forwarded to the plaintiff a check dated June 18, 1928, for the sum of Twenty-one Hundred Eighty-five and 97/100 ($2185.97) Dollars purporting to cover the first and second invoices. This check was drawn on the Municipal Bank, Greenpoint Branch, Brooklyn, New York, by the defendant to the plaintiff's order. The plaintiff deposited this check in its bank, and the same was returned and marked by the Municipal Bank, Greenpoint Branch, Brooklyn (the bank upon which it was drawn), "Not sufficient funds." This is stated in one of the affidavits in support of the motion. This was the second worthless check that the defendant had sent the plaintiff.
Upon the failure of the defendant to pay for the invoices and shipments, and upon the receipt of the worthless check, the plaintiff did not further ship, as it did not desire to present the defendant with more stock with no visible likelihood of recovering payment therefor.
POINT I
Complaint states a good cause of action for goods sold and delivered.
All of the allegations of the complaint are admitted by the defendant by failure of the defendant to deny the allegations thereof in its answer.
Sec. 243, Civil Practice Act.
POINT II
The alleged affirmative defense to the effect that the plaintiff is a foreign stock corporation and has not obtained a certificate of authority to do business in this State is without merit.
The only evidence submitted by the defendant in support of this defense is contained in the affidavit of Abraham Wilkenfeld wherein he states that during the month of September, 1928, he called at the Woolworth Building, New York City, and found that the plaintiff herein was listed as one of the tenants of the building, and that it had its name upon the door of Room 2128 of the building, and that it had its name also listed in Donnelley's Red Book, together with telephone number.
In the first place, when a foreign corporation brings a suit in the Courts of this State and alleges a good cause of action in its complaint, it will be assumed that it is rightfully in the State and properly in the Court until the contrary is made to appear.
Eclipse Silk Mfg. Co. v. Hiller, 145 A. D. 568; 129 N. Y. S. 879.
Cases construing Stock Corporation Law §110, formerly General Corporation Law §15, regarding the necessity of a foreign corporation to obtain a certificate, have invariably held that the fact that a foreign corporation has an office within the State does not of itself constitute doing business within the meaning of the statute.
System Co. v. Advertisers' Cyclopedia Co., 121 N. Y. S. 611;
Pittsburgh & Shawmut Coal Co. v. State, 118 Misc. 50 ; 192 N. Y. S. 310;
E. T. Burrowes Co. v. Caplin, 127 A. D. 317 (Second Dept.); 111 N. Y. S. 498.
In the latter case, Woodward, J., states:
"This action was brought to recover for goods sold and delivered. The pleadings were oral, and the defense urged was that the goods did not comply with the specifications contemplated by the parties. Upon this point the court has found against the defendant, and upon this appeal there is no contention that the judgment is not supported by the evidence. It is urged, however, by the defendant, that the plaintiff is a foreign corporation doing business within this state, within the contemplation of the statute, and without complying with the conditions of sections 15 and 16 of the general corporation law (Laws 1892 , p . 1805, c. 687).
"Upon the facts as testified to by the plaintiff's witnesses, the contract was not made in this state. The order was made here, addressed to the plaintiff at its home office in Maine, and the order was accepted there, and the goods were shipped from the home office directly to the defendant. But, beyond this, the plaintiff, in maintaining a salesroom in the City of New York, where no goods, except samples, are kept, and where there are no books of account kept, and where all of the employes are paid directly from the home office, and there is no bank account in this state, there is an absence of the facts necessary to constitute doing business in this state as contemplated by the statute. The authorities are so numerous upon this question, and the case is so far from presenting a close question, that it seems useless to incumber the record by a citation of the authorities or further discussion. The case of Cummer Lumber Co. v. Insurance Co., 67 App. Div. 151, 73 N. Y. Supp. 668, is sufficient authority for affirming the judgment.
"The judgment appealed from should be affirmed, with costs. All concur."
The fact that a foreign corporation's name appears on the door of an office in New York City, and also in the telephone directory and in the business directory, does not constitute doing business within the State.
Schwarz v. Sargent, 197 N. Y. S. 216;
Rosenblatt v. Bridgeport Metal Goods Mfg. Co., 105 Misc. 92 ; 173 N. Y. S. 331;
Philadelphia & Reading R. R. Co. v. McKibbin, 243 U. S. 264-267.
In order that the prohibition contained in the section apply, the contract must be made in the State of New York. In this case the contract was made outside of the State. Where orders are sent to the home office in another State and where the order is accepted there and the goods shipped from there directly to the purchaser, the corporation is not doing business in this State.
E. T. Burrowes Co. v. Caplin, supra.
The section does not apply to a contract not made in the State of New York.
Bremer v. Ringe, 146 A. D. 724, 131 N. Y. S. 487.
"The prohibition in §15 of the General Corporation Law against the maintenance of actions in this state by a foreign stock corporation doing business in this state without procuring a certificate authorizing it to transact business here, is against the maintenance of actions on contracts made within the state only."
Sterling Mfg. Co. v. National Surety Co., 94 Misc . 604, 159 N. Y. S. 979.
Where the suit is brought upon a contract not made here, it is unnecessary to consider whether the plaintiff is doing business in this State.
Great Northern Moulding Co. v. Bonewur, 128 A. D. 831, 113 N. Y. S. 60.
POINT III
The counterclaim of the defendant was properly dismissed on motion for summary judgment by the Court below.
The Court below in memorandum opinion states,
"The papers submitted on this motion justify the plaintiff in refusing to deliver additional merchandise because of defendant's failure to meet its obligation when it fell due."
The officers of the defendant corporation were evidently under the impression that they could secure unlimited supplies of merchandise from the plaintiff without paying for it, or at least, the plaintiff was obliged to deliver five thousand (5,000) gross of beer bottles before the plaintiff could expect payment therefor. This view of the situation disregards all of the correspondence and the agreement of the parties. The agreement between the parties is evidenced by the correspondence between May 15, 1928, and June 1, 1928, as alleged in the plaintiff's complaint paragraph "Third," and admitted by the defendant's answer. The contract, as evidenced by the correspondence, was that the plaintiff was to sell and deliver to the defendant at an agreed price fixed by previous orders, which the defendant agreed to pay either thirty days net or one (1% ) per cent ten days from the date of the invoice of shipment, and that prior shipments must be paid for before another shipment would be made. The plaintiff pursuant to this agreement shipped three carloads and issued three invoices at different times; none of these invoices were paid, and upon the failure of the defendant to pay, and after receipt of a worthless check, the plaintiff ceased delivery believing that it was under no obligation to indefinitely ship merchandise to the defendant without payment.
Failure of the buyer to pay an instalment of the price constitutes a breach of the entire contract justifying the seller to bring this action and refusing to deliver more goods (§126 of the Personal Property Law) and withholding delivery (§134, sub. 2 of the Personal Property Law).
Gardner v. Clark, 21 N. Y. 399;
Kokomo Strawboard Co. v. Inman, 134 N. Y. 92;
Nichols v. The Scranton Steel Co., 137 N. Y. 471;
Raabe v. Squier, 148 N. Y. 81;
Price v. New York City, 104 A. D. 198, 93 N. Y. S. 967;
American Broom & Brush Co. v. Addickes, 19 Misc. 36, 42 N. Y. S. 871;
Barnes v. Denslow, 56 Hun 640, 9 N. Y. S. 53; affirmed 130 N. Y. 687;
Ferguson v. Chuck, 236 N. Y. 149, rev. 204 A. D. 876;
Old Town Wollen Co. v. Louis Fishman & Co., 218 A. D. 472, 218 N. Y. S. 497;
F. Heller & Bro. v. Continental Mills, 196 A. D. 7, 187 N. Y. S. 511, affirmed 233 N. Y. 641.
POINT IV
The moving papers are sufficient
The point raised by the defendant appellant to the effect that the moving papers are defective in that the person making the affidavit has no personal knowledge of the fact, is untenable.
The entire transaction is evidenced by correspondence — copies of the correspondence were attached to the moving papers — notice to produce originals served upon the attorneys for the defendant for production on the argument. The originals in the possession of the plaintiff were produced on the argument. No issue was raised by the defendant on the argument or in the affidavits that the letters and telegrams were not genuine and constituted the correspondence between the parties. The affidavit of Lesh identifies this correspondence and gives his own personal recollection and knowledge regarding the same. His affidavit states "That he is an officer of the plaintiff corporation, to wit, its Auditor, that deponent is familiar with the subject matter of this action and the alleged counterclaim interposed by the defendant herein. That the sources of deponent's knowledge, in addition to his actual participation in the negotiations and contract between the parties, are various correspondence, records and files of the plaintiff corporation, which are in his possession."
Rule 113 of the Rules of Civil Practice in regard to an affidavit on a motion under said rule states —
"* * * and the affidavit of the plaintiff or of any other person having knowledge of the facts, verifying the cause of action and stating the amount claimed, and his belief that there is no defense to the action * * *."
We have here an affidavit by an officer of the plaintiff corporation who states his actual knowledge of the facts set forth in the affidavit.
The complaint is verified and the allegations thereof admitted by the defendant.
Much of the correspondence indicates that it was either written or received by Mr. Lesh. Letter of March 31 , 1928, is signed by the Auditor, the office held by Mr. Lesh and bears his initials F. J. L. Letter dated April 10, 1928, signed by the Auditor and bears Mr. Lesh's initials; letter dated May 8, 1928, has a note upon it "Return to Lesh" and Mr. Lesh is mentioned in said letter "In order that there be no delay, we are calling your attention to Mr. Lesh's letter of April 10th regard credit terms"; letter dated May 19, 1928, signed by the Auditor bears Mr. Lesh's initials; letter of May 28, 1928, signed by the Auditor bears Mr. Lesh's initials and telegram of June 2 contains a pencil note "Mr. Lesh." Letter of June 4, 1928, signed by the Auditor contains Mr. Lesh's initials; letter of June 8, 1928, of Wilkenfeld Brothers, Inc., to the plaintiff expressly refers to Mr. Lesh as follows: "In reference to your previous letter regarding our payment of the bills, we pointed out to your Mr. Lesh that we shall try to discount our bills." Letter of June 12,1928, signed by the Auditor (Mr. Lesh) and bears his initials.
The statement in an affidavit submitted by the defendant that Mr. Lesh knew nothing about the transaction cannot overcome the positive statement by Mr. Lesh in his affidavit that he was familiar with the transaction because of the fact that he actually took part in the negotiations thereof, supported by the evidence that a large portion of the correspondence of the plaintiff was signed "Hemingray Glass Co. by Auditor" and bearing his initials. Such a contention upon the part of the defendant is inconsistent with the pleadings. The defendant admits the allegations of the complaint, admits the genuineness and correctness of the correspondence submitted. The plaintiff selected Mr. Lesh to make the affidavits because he was the officer of the corporation that knew all the facts and circumstances of the matter.
POINT V
The defendant failed to set forth in its pleadings or affidavits sufficient facts to entitle it to defend this action.
The contract sued on is evidenced by the correspondence between the parties from May 15 to June 1, 1928. The defendant says this is not so, but that the contract between the parties arose under a prior contract, which, although completely carried out and deliveries made under such prior contract, in some way, continued to exist and covered the present transaction. The defendant says that this contract arose in 1927 and that the order was for 400 gross of beer bottles. This order was delivered, but it says that the present order of 5,000 gross of "Lion" beer bottles was also contemplated in this order. The actual facts of the case, however, as shown by the correspondence are, that on March 15, 1928, the defendant ordered from the plaintiff a carload of "Lion" beer bottles. The plaintiff on March 19, stated in its letter that the car was being delivered and that this shipment depleted the present stock and "raises the question of how many beer bottles you want us to manufacture and stock for the Lion people this season — we are operating to capacity on definite orders which have been prearranged and it is important that you furnish information that we may include the 'Lion' bottles also." Further correspondence was exchanged between the parties fixing the terms of the new contract. We desire to call the Court's attention to the fact that even under the agreement dated September 14, 1927, the same contains the following terms: "1% ten days from date of invoices, thirty days net. In this connection should you have reason to doubt our credit responsibility you may require payments in advance." These are the terms which the plaintiff states were agreed upon by the parties in the new contract 1% ten days from date of invoice, thirty days net, and that the plaintiff further imposed a condition that each carload of beer bottles should be paid for before the shipment of another carload. The alleged agreement dated September 14, 1927, as heretofore stated, goes further than this and states that if the credit is doubted, the plaintiff may require payments in advance. The plaintiff had good reason to doubt the credit of the defendant, as it had received two worthless checks and had not been paid for several shipments ofgoods, and imposed a condition in the new contract for the payment of each carload of goods as a condition precedent to further shipment.
The affirmative defense, counterclaim and affidavits submitted by the defendant raise no valid issues. The facts set forth in the defendant's alleged counterclaim and in the affidavits used in opposition to the motion are not a defense to this action, as hereinbefore stated.
It is incumbent on the defendant to show a bonafide defense to the action, one which he may be able to establish. It must be a plausible ground of defense, something fairly arguable and of a substantial character. This must be shown by affidavits or other proof. He cannot shelter himself behind general or specific denials. He must show that his denial or defense is not false and sham, but interposed in good faith and not for delay.
Dwanv. Massarene, 199 A. D. 872; 192 N. Y. S. 577;
General Investment Co. v. Interborough Rapid Transit Co., 235 N. Y. 133
at page 143
"* * * if the pleadings and affidavits of plaintiff discloses that no defense exists to the cause of action, and a defendant, as in the instant case, fails to controvert such evidence and establish by affidavit or proof that he has a real defense and should be permitted to defend, the court may determine that no issue triable by jury exists between the parties and grant a summary judgment."
Also
Continental Securities Co. v. Interborough Rapid Transit Co., 118 Misc. 11; 193 N. Y. S. 892, affirmed 200 A. D. 794; 193 N. Y. S. 903.
The appellant states that many issues of fact have been raised by it and cites various cases, among them J. R. Melcher, Inc. v. Granziano, 512 A. D. 425, and Cook v. Bauman, 217 N. Y. 187. These cases cannot be located, because the citations are wrong. What these cases may hold, therefore, cannot be well discussed, but the other cases cited under Point II bear out the contention of the respondent herein that a defendant must show a bonafide defense or set forth a cause of complaint against the plaintiff, in the nature of a counterclaim, which is bona fide and which can be urged to defeat the plaintiff's claim. The defense and counterclaim in this case are not bonafide, do not defeat the claim of the plaintiff and are merely interposed for delay. In other words, it is not enough for a defendant to raise issues, but that these issues raised must be bona fide, and if proved, would constitute a good and substantial defense to the cause of action.
The appellant says that the issue of the existence of the contract is raised, particularly the contract of September 14, 1927. There is no dispute in this case that there was a contract between the parties under which the plaintiff agreed to deliver goods and the defendant to pay for them. Whether there was a contract prior to the one upon which the plaintiff sues is immaterial, as that contract was fully carried out and completed, and a new contract entered into between the parties. The appellant also says that the issue is raised "Who breached said contract?" There is no dispute about this, as the defendant admits all the allegations in the complaint. The defendant does, however, set up in the counterclaim that the plaintiff was under obligation to continue to deliver merchandise irrespective of payment thereof, and in face of securing worthless checks. This contention the Court held on the motion, and rightly so, to be a mere sham answer and interposed only for delay and not raising a bona fide issue upon which the defendant should be allowed a trial.
Another question which the appellant asserts is, whether any damages were sustained by the defendant, and if so, the amount thereof. This is not an issue because, as the defendant was guilty of breaching the contract, it is not permissible for the defendant to claim damages because of its own wrong.
Another issue which the appellant claims was raised is, whether the non-payment of invoices of May 19, 1928, by the defendant upon demand justified the plaintiff in canceling the contract. The non-payment of three invoices and the receipt by the plaintiff of a worthless check purporting to pay two of them under a contract which provided that each individual shipment should be paid for before another shipment would be made, and within a certain specified time, surely justified the plaintiff in failing to make further deliveries without payment. This matter has already been covered in a preceding point.
The last question which the appellant raises is, that the plaintiff is a foreign corporation doing business within the State of New York without a license. This is purely a technical allegation with out any facts to support it. The appellant did not set forth in its affidavits sufficient facts to even raise the issue. The only evidence being that the defendant had a place of business in the State of New York. This alone, as has already been pointed out, does not constitute doing business in the State, and aside from that fact, as has already been covered, this contract sued upon was not made in this State.
A case almost identical with this one was determined on a motion for summary judgment. Old Town Wollen Co., Inc. v. Louis Fishman & Co., 218 A. D. 472, 218 N. Y. S. 497.
Therefore, these so-called issues are not in fact issues, and if some of them can be considered to be so, they are not bona fide issues upon which the appellant is entitled to a jury trial.
The purpose of Rule 113 is to prevent the delaying of a judgment by a denial, affirmative defense or counterclaim good on its face but without actual support in fact. Such a denial may be sufficient to defeat a motion for judgment on the pleadings, but it will not suffice to defeat a motion for summary judgment where the plaintiff in support of his motion makes sufficient proof of the case, and the defendant fails to show in his affidavit, or other proof, such facts as may be deemed sufficient to entitle him to defend the action.
Continental Securities Co. v. Interborough Rapid Transit Co., 118 Misc. 11; 193 N. Y. S. 892, affirmed 200 A. D. 194; 193 N. Y. S. 903.
There is no question in this case but that the respondent rightfully refused to deliver further merchandise. The contract between the parties called for delivery by instalments which were to be paid for separately. The appellant neglected to pay for three instalments, and, adding insult to injury, furnished the respondent with a worthless check which, by-the-way, was the second that had been received. The respondent then began an action for the price of the goods. There can be no question but that the respondent had a right to sue for the price of the goods, that is even admitted by the appellant. The appellant, however, contends that the respondent should continue, even in the face of these facts, to deliver goods to appellant, and cites Personal Property Law §126 as an authority for its stand. This section of the Personal Property Law to the contrary holds that under such a state of facts, the seller may treat the whole contract as broken and bring an action for compensation for the merchandise already delivered. Under this section it was proper for the Justice hearing the motion to determine that the respondent had a right to treat the whole contract as broken and sue for the price of the merchandise. It was not a determination of the truth or falsity of the allegations contained in the affidavits submitted pro and con on the motion for summary judgment, as appellant contends, because the correspondence between the parties is admitted. It was a question of whether or not the defendant's affirmative defense and counterclaim amounted to a bona fide answer to the respondent's claim, and the Court, in its decision, concluded that such an answer and counterclaim was not bona fide and no issue was raised demanding a trial, and, in so far as this case is concerned, that the breach of the contract by the appellant justified the respondent in refusing to proceed further and to bring suit. To hold that the Court on a motion of this character has no right to pass upon such a question would mean that Rule 113 would only be granted in the same class of cases as relief would be granted under Rule 112 providing for judgment on the pleadings. This is not the intent of the framers of the Civil Practice Act, and Rule 113 was adopted to meet a case like the present one where a seller has sold goods, delivered same and has not been paid therefor and the buyer interposes a technical defense without merit, such as the affirmative defense herein that the respondent is a foreign corporation, and a counterclaim with less merit, urging that the respondent was bound to indefinitely ship goods to the appellant without payment. The fact that the appellant's counterclaim is one for unliquidated damages is immaterial. The plaintiff is entitled to recover on its complaint, as has heretofore been set forth, and the defendant cannot also recover at the same time. The plaintiff's recovery precludes the defendant's recovery on its counterclaim. By a recovery under the complaint, the counterclaim falls by the wayside. *
POINT VI
The order and judgment appealed from should be affirmed with costs to the respondent.
Respectfully submitted,
WINGATE & CULLEN,
Attorneys for Plaintiff-Respondent.
NOTE: Appellant's brief, under Point V at the end thereof, describes Joseph & Demov as attorneys for the respondent. This is an error. The first page of appellant's brief is correct in statement that it is the appellant's brief. Statement under Point V should be Joseph & Demov, attorneys for the appellant. No point is raised by this, except to clarify the situation.
To be argued by
LAZARUS JOSEPH, Counsel.
SUPREME COURT
APPELLATE DIVISION — SECOND DEPARTMENT.
_______________________________________
HEMINGWAY GLASS COMPANY,
Plaintiff-Respondent,
AGAINST }
WILKENFELD BROTHERS, INC.,
Defendent-Appellant.
_______________________________________
APPELLANT'S REPLY BRIEF.
The defendant's appeal is based upon its contention that triable issues have been raised which cannot be decided on a motion for summary judgment. Also on the ground that the counterclaim being for unliquidated damages Rule 113 does not apply.
The respondent's brief proceeds on the theory that a trial has already been had and all issues have been decided in its favor. It does not meet the issues raised by the appellant.
Erroneous Statement of Facts.
The respondent assumes as established facts, its version of the controversy and ignores entirely appellant's version of the transaction.
So on page 2, it states that the goods in question were ordered between May 1st and June 1st, 1928, and delivered pursuant to orders given by letters. The appellant, contends that these goods were shipped in compliance with a written contract dated September 14th, 1927 (fols. 187-192).
On the same page, the respondent states that the appellant ordered 5,000 gross bottles, that said order was accepted subject to approval by its Credit Department. The appellant contends that it had a written contract with the respondent (fols. 187-192), under which it was required to furnish 30,000 gross bottles, that the letters ordering the 5,000 bottles was a shipping order under such contract, and that the credit terms were fixed by the written contract and could not be changed arbitrarily by the respondent.
The appellant further contends that the respondent's refusal to fill this order against the written contract unless the terms of credit were changed and payments anticipated constituted a breach on the part of the respondent which entitled this defendant to institute suit for damages and excused refusal to pay the amount sued for in the complaint as a prerequisite for further shipments.
Under the written contract of September 14th, 1927, only part of the claim sued on was due on the 18th day of June, 1928. Prior to that date the respondent had breached the contract. Appellant was not in default, and could not have been in default. The respondent, by contending that the defendant's refusal to pay bills excused it from making further deliveries because the defendant stopped payment of the check of June 18th, ignores its prior breach of the contract. Its contention that payment of the check was refused because of insufficient funds, is contradicted by an officer of the bank, on which it was drawn, who avers that prior to the date when this check was presented payment thereof had been stopped by the appellant.
The defendant had two contracts with the plaintiff. One for 4,000 gross, was completed prior to May 16th, 1928. The other which is the subject matter of this suit, obligated the respondent to deliver 30,000 gross of one class of bottles and 1,500 gross of another class of bottles.
A contract for 400 gross is erroneously misstated under Point V, to be the subject matter of the counterclaim. The appellant's counterclaim is not based on the contract for 400 gross beer bottles but is based on the contract of September 14, 1927, for 30,000 gross and 1,500 gross bottles.
The statement at the bottom of page 5, that the appellant refused to pay invoices and that upon the receipt of a worthless check the plaintiff refused to ship further merchandise only sets forth respondent's version and is not the fact. It is inconsistent with statements of the respondent, at page 3, where it is stated that there was no contract in existence which required any deliveries on its part, and with the denial of the existence of a contract in its reply.
As a matter of fact the breach was on the part of the respondent and occurred in April, 1928, by its refusal to make further shipments until all prior shipments which were not due were paid, which was contrary to the terms of the contract under which appellant had 30 days to make payment and also by its refusal on June 22nd, to make further deliveries under any conditions.
The respondent overlooks the fact that there has been no trial, that the issues have not as yet been determined. It proceeds as if it has been established by a verdict of a court or jury after a trial that the appellant has breached the contract, and it was blameless.
It disregards the actual fact that if the appellant's version is correct the contract was breached by the respondent when it refused to make deliveries as provided by the contract. This breach is conceded in the respondent's correspondence, where it refuses further deliveries until all prior shipments are paid, clearly in violation of the terms of the contract which required payments 30 days after date of invoice. Respondent's own version of the transactions are proof of triable issues which required the denial of this motion for summary judgment.
In Answer to Point II.
The cases cited by the respondent are in applicable to the case at bar.
The appellant contends that the contract under which the merchandise referred to in the complaint was delivered, was entered into between the parties at the City of New York. It was signed, delivered and accepted in New York City by a duly authorized official of the respondent. No affidavit of Campbell who is charged with the making of the contract on behalf of the respondent is produced. There is no denial that this contract was made in New York and it is conceded that plaintiff is not licensed to do business in New York . While the reply denies the making of the contract, Lesh, the auditor, on whose sole affidavit this application was based does not specifically deny the making of the contract, its acceptance or the right of Campbell to make, accept it, and bind the respondent.
In addition it appears uncontradicted that the plaintiff maintains an office in New York City, is listed in the telephone directory and is conducting generally its business within the State of New York. This constitutes a defense to the action set forth in the complaint.
In all of the cases referred to by the respondent, the contracts were made outside of the State of New York. In the case at bar it is conceded that it was made in New York. The case at bar is therefore clearly distinguishable from the cases cited and constituted a valid defense and requires the reversal of the judgment.
In Answer to Point III.
The cases cited do not apply and are not authorities for respondent's contentions.
Gardner v. Clark, 21 N. Y. 399, is direct authority for the appellant.
That action involved a contract for the sale of merchandise to be delivered in installments. The buyer agreed to pay for each installment as delivered. Some of the installments were delivered but not paid for. The seller then refused further deliveries until all prior deliveries had been paid. The Court of Appeals held that the seller was required to make deliveries and could not make it conditional to all prior bills being paid. The Court at page 404 says:
"I am inclined, however, to think that * * * what the Judge intended to say and what the jury must have understood him to say was that the defendant could not insist upon payment for the barley which had been delivered as a condition precedent to the delivery of the residue. If this is the true meaning of the language used in this portion of the charge, it was, in my judgment, obviously right."
This being the law, the respondent is entirely in the wrong and had no right to refuse further deliveries until prior bills were paid.
This case requires a reversal of the judgment.
In Kokomo Strawboard Co. v. Inman, Nichols v. The Scranton Steel Co.; Raabe v. Squire; Price v. New York City; American Broom & Brush Co. v. Addickes; Ferguson v. Chuck, trials had been had either before a jury or a trial court which had found after a trial of the issues that the contract had been breached by the buyer.
These cases hold that in order to recover under a contract, the party seeking relief must show compliance on his part of the terms of the contract, and that one who breaches a contract cannot recover from the other party damages for an alleged subsequent breach.
The appellant does not claim anything different than what these cases hold. But they do not apply to this case because there has been no trial and no adjudication of any breach by appellant. It does complain, however, because there has been no valid adjudication of the breach in a proper forum, and because it has been deprived of its day in court.
The appellant is upheld in its contention by the case of Heller & Bros. v. Continental Mills, 187 N. Y. Sup . 511, cited by the respondent. In that case a trial was had at which the seller was successful. The verdict of the jury in its favor was set aside by the trial court. Upon appeal the appellant, the seller, contended that since it appeared that the buyer had failed to make payments as required, the complaint should have been dismissed. The Court refused to sustain this contention, and held it was a question to be determined by the jury.
In that case the contract was an installment contract and required payment within ten days after each delivery. It was conceded that the buyer had failed to make payment for several of the deliveries and was in default for a period of over 30 days. Nevertheless the Appellate Division, through Laughlin, J., at page 512, says:
"I am of the opinion that the evidence presented a question of fact with respect to whether the plaintiff's breach of the contract in failing to make installment payments when due was so material as to justify defendant in refusing to proceed further which was properly submitted to the jury."
This case cited by the respondent supports the contention of the appellant and requires a reversal of the judgment.
Old Towne Woolen Co. v. Louis Fishman & Co., 218 N. Y. S. 497, referred to under this Point and also under Point V of the Respondent's Brief, is distinguishable from the case at bar and in fact is favorable to the appellant's contention.
There the existence of a contract and failure to make deliveries were conceded.
In the case at bar the existence of a contract is denied. In that case it was conceded that payments were not made when due, that there was no breach on the part of the seller or refusal to deliver merchandise until after the conceded breach on the part of the buyer. It appeared that the bills became due on August 31st and the next installment of delivery was not due until October 1st. So the breach on the part of the buyer was on August 31st. On the part of the seller, no breach could have been predicated prior to October 1st.
In the case at bar the respondent breached the contract in April, and appellant could not breach it until the bills became due in June following.
Payment was tendered by the appellant on the day they were due. Simultaneously with the sending of the check but prior to its receipt by the respondent, it further breached the contract by refusing to make further deliveries. Prior to the due date of these bills the respondent had breached the contract by demanding that appellant anticipate payments of bills (fol. 88). The respondent in its letter of March 24th, 1928, concedes that appellant had thirty days after delivery to make payment (fol. 84).
This clearly was a breach of the contract. The appellant was entitled to have delivery of 30,000 gross bottles at any time prior to September 1st, 1928, and had 30 days after each shipment within which to make payment. By curtailing the credit of the appellant and refusing to make shipment in accordance with the contract, the plaintiff was clearly in the wrong and guilty of a breach which entitles the defendant to recover under its counterclaim.
Under the ruling in the Old Towne Woolen Co. case even if payment was not made in strict accordance with the contract, the appellant was justified in refusing to make further payments because of this prior breach on the part of the respondent and its refusal on the due date of the bills to make any further deliveries.
The Old Towne Woolen Co. case decides that by indulgence in requiring payment of bills when due the seller does not waive its right to insist upon prompt payment in accordance with the contract for subsequent installments. That question does not arise in the case at bar.
The court there held that the question, "whether failure to pay an installment gives the seller the right to cancel a contract", was not before the court, because there the seller had not cancelled the contract for the non-payment of any prior installment.
In the case at bar as pointed out the situation is entirely different.
Here there were no bills unpaid when the respondent breached the contract. There could be no breach on the part of the appellant as these bills only became due two months after respondent's breach. A clear cut issue arises as to whether there was a contract, whether the refusal of the respondent in April and there after to make deliveries in accordance with the contract constituted a breach on its part. If the appellant's version is correct the breach on the part of the respondent was prior to the date when there could be any breach by appellant. Under the ruling in the Old Towne Woolen Co. case, the breach must have been on the part of the respondent.
There being at least a question as to whose version of the transaction is correct an issue is raised which requires a trial and a reversal of the judgment appealed from.
In Answer to Point IV.
The appellant contends that this counterclaim is based upon a written contract entered into with one Campbell acting on behalf of the respondent. Campbell's affidavit is not produced Lesh, the auditor, had no personal knowledge of this contract. The correspondence which is signed by Lesh only refers to credit.
Under such circumstances, as pointed out in our main brief, the respondent did not comply with the rule, in that it failed to produce affidavits of the persons who are cognizant of and have personal knowledge of the facts and for that reason the papers are insufficient and required a denial of the motion. +
In Answer to Point V.
The respondent erroneously states that the defendant's contract was for 400 gross of beer bottles. This was a prior order which was terminated long before the controversy in question here arose.
The respondent seems to have great difficulty in determining what its contention is in regard to the contract referred to in the counter claim and what contract, if any, existed between the parties.
The respondent continually refers to a contract resulting from correspondence. It then states it was for 400 gross beer bottles; it then asserts that there was no contract. At another time it claims that there was a contract for 5,000 gross. All these contentions on the part of the respondent are made out of whole cloth and have no existence in fact. They ignore entirely the written contract dated September 14th, 1927, signed by both parties, the existence of which is not even denied by the respondent and/or its officer Campbell whose signature is appended thereto. The respondent ostrich like shuts its eyes to the existing contract, its breach by it, and thereby would have the court assume that there is no validity to the appellant's counterclaim.
These various assertions and insinuations of the respondent having no basis in fact are only put forth for the purpose of confusing the real issue before the Court.
The appellant has a written contract which requires the delivery by the respondent of 30,000 gross of one class and 1,500 gross of another class of bottles, prior to September 1st, 1928, in accordance with shipping orders to be given from time to time by the appellant. Payment was required, 1% within 10 days or 30 days net after date of invoice. The respondent insisted upon payment for each shipment prior to the delivery of the next, even though such bills were not due and finally refused to make any further deliveries under any condition. This constituted a breach which entitles appellant to recover on its counterclaim.
The respondent denies that there was any contract. It claims to have accepted a contract for 5,000 bottles only on condition that each delivery be paid for before another one is made. In this they are contradicted by their letter wherein the terms of credit are set forth as 1% in 10 days or 30 days net, as contended by the appellant (fol. 88).
Respondent claims it was justified in refusing to make further deliveries because appellant failed to make payment for shipments which became due. Appellant claims the respondent breached the contract long before these bills became due.
These diverse contentions of the parties clearly which requires a trial and which cannot under the decisions be determined on affidavits on a motion for summary judgment.
The contention of the respondent that the appellant's counterclaim is insufficient, that no damages were sustained by it, that the contract was breached, by the appellant, to such an extent as not to require further deliveries on the part of the respondent merely beg the questions in issue. Those are the issues which have not been and could not be determined by a judge sitting at Special Term on affidavits submitted, on a motion for summary judgment. They require a trial in the proper forum where the parties have an opportunity to submit their versions to a trial court or jury in a proper manner as provided by our laws.
Respondent's Failure to Reply to Appellant's Point III is a Concession that the Contention there Made by the Appellant is Correct.
Respondent makes no reply to the appellant's contention that the counterclaim being for unliquidated damages, no relief in respect thereto can be granted under Rule 113.
They must, therefore, be deemed to concede that the contention as therein made is correct and that the Court erred in granting summary judgment in respect thereto.
It is respectfully submitted that the judgment and order appealed from were erroneously granted and should be reversed and the motion for summary judgment denied.
Respectfully submitted,
JOSEPH & DEMOV,
Attorneys for Appellant.
