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[Trade Journal] Publication: Supreme Court Appellate Division, Second Department New York, NY, United States |
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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. 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.
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| Keywords: | Hemingray |
| Researcher notes: | This volume was originally owned by the Library of the New York City Bar Association. I was told by a reference librarian on 10/14/2019 that after these volumes were scanned, they were not returned and are subsequently "lost". The Librarian confirmed that this is for the New York State Supreme Court. |
| Supplemental information: | Article: 5177 Article: 11666 Article: 14894 |
| Researcher: | Bob Stahr |
| Date completed: | October 14, 2019 by: Bob Stahr; |