115 N.Y.S. 34 | N.Y. App. Div. | 1909
Plaintiff moved at Special Term, Part 1, for an order granting judgment for the sum of $4,078.89, with interest from December 1. 1907, and also for the sum of $2,851.18, with interest from January 1, 1908, admitted by the answer to be due to the plaintiff, and directing' that the action be. severed, and that it be continued as to the remainder of the claim set up in the complaint, with like effect as to all subsequent proceedings as if it had been originally brought for the remainder of the claim. The motion was denied and from the order entered thereon this appeal is taken.
The complaint alleges that on or about the 25th day of July, 1907, the plaintiff and defendant, at Philadelphia, entered into a contract whereby the plaintiff agreed to furnish the defendant 3,000,000 tliree-colored process pictures, and the defendant agreed to pay the plaintiff for the same according to the conditions set forth in exhibits annexed to the complaint and made a part thereof.
In the first of these letters defendant wrote: “ Kindly accept our order for three million three-colored process pictures under the following conditions: * * * That the three million pictures will be divided equally into nine subjects. * * * Proofs are ’to be furnished us for our approval before the actual work of printing is begun. That the delivery shall be as follows: Two million to be delivered during September, October, November and December, 1907, at a rate of 500,000 each month and at a rate of not less than 100,000 per week. That the remaining one million pictures are to be ordered out by January the 31st, 1908. That if we see fit the delivery of the pictures can be changed and the entire three million ordered out by December 31st, 1907, instead of January - 31st, 1908 * * *. That the price of the first 500,000 pictures is to be $6.10 per thousand, and the price for the remaining two million five hundred thousand is to be $5.50, both, prices
The complaint proceeds to state that the plaintiff in all respects duly performed all the conditions of said contract on plaintiff’s part until the 9th day of January, 1908, when the defendant refused to pay the plaintiff installments then due for deliveries of pictures received by defendant in November and December, and further abandoned said contracts, and refused to perform the same, and prevented the plaintiff from continuing to perform the same thereafter. “Fifth. That on said 9th day of January, 1908, the defendant had received from the plaintiff in November, 1907, 874,930.pictures, which the plaintiff had delivered under said com
The complaint further alleged that it .had expended in preparing to furnish 728,000 pictures in January, $2,779, and that by the refusal of the defendant to complete on its part, and its abandonment, plaintiff has lost the profit on said number of pictures, amounting to $1,225. Those matters are not before the court.
The answer admits the allegations contained in the 1st, 2d and 3d paragraphs of the complaint, which are the allegations of the corporate capacity of the two parties and of the making of the eon tract and the terms thereof, and so much ■ of paragraph numbered “ Fifth” as contained in the words “ that on said 9th day of January, 1908, the defendant had received from the plaintiff in Hovember, ■ 1907, 874,930 pictures,” and “that on said 9th day of January, 1908, the defendant had received from the plaintiff in December, 1907, 518,400 pictures,” and the allegations of paragraph numbered “ Eighth” contained in the words, “ But the defendant has refused, and still ref uses,-to pay the same.” It denied all the allegations contained in the 4tli paragraph of the complaint, which were that the plaintiff had in all respects duly performed all the conditions of the contract until the ninth day of January, when the defendant refused to pay, and abandoned said contract, and refused to permit plaintiff to perform, and prevented plaintiff from performing; it denied all the allegations in the 5th paragraph other than its admission of the receipt of the pictures, and it denied each and every allegation in said complaint contained, which was not therein specifically admitted.. For a further separate and distinct defense it alleges that it has always been ready and willing to carry out the contract, but that plaintiff on its part has failed to carry out its contract and to deliver pictures of the kind, quality and condition specified in said
It will be noted that no counterclaim is set up; that no amount of damage by way of offset is alleged, and that the matters set forth are'not expressly stated to be a partial defense as required by section 508 of the Code of Civil Procedure. . Further, that the receipt and use of the entire November shipment is admitted, and, that the receipt of the entire December shipment, and the use of approximately one-half thereof is admitted. It is not to be questioned, and in fact the respondent does not question, but states in its brief, “if this were a contract made in the State of New York, the defendant, as set forth in the carefully prepared opinion in Staiger v. Soht, 116 App. Div. 874, affirmed, 191 N. Y. 527, and other New York decisions cited'by plaintiff, * * * would have been compelled, either to-reject the pictures absolutely, or pay the agreed price for them, as in such cases the New York decisions do not recognize any warranty that would survive acceptance and use,” In the Staiger case, Mr. Justice Miller said : “ I deduce from the foregoing that the' following propositions are authoritatively settled in this State, viz. : That mere words of description in an executory contract of sale do-
But the defendant claims that it appearing upon the papers that this was a Pennsylvania contract, because the contract is admitted to have been made at Philadelphia and the goods were to be delivered f. o. b. at Philadelphia, so that both the place of the making of .the contract and of the execution thereof was in said State, that the law of Pennsylvania is to be applied; and it claims that under the law of that State the defendant could, at its option, either reject the goods on delivei-y or accept and use them, and in case of acceptance and use would only be liable for their actual value, not for the contract price. But the law of Pennsylvania is not set up or alluded to in the answer. It has been generally understood that where a party either seeks to recover or defend under a foreign law, such law must be pleaded and proved like any other fact, since the court cannot take judicial notice of the laws of a foreign State.
In Hanley v. Donoghue (116 U. S. 1), Mr. Justice Gray said: “ Ho court is to be charged with the knowledge of foreign laws; but they are well understood to be facts which must, like other facts, be proved before they can be received in a court of justice. Talbot v. Seeman, 1 Cranch, 1,38; Church v. Hubbart, 2 Cranch, 187, 236; Strother v. Lucas, 6 Pet. 763, 768; Dainese v. Hale, 91 U. S. 13, 20. It is equally well settled that the several States of the Union are to be considered as in this respect foreign to each other, and that the courts of one State am not presumed to know and, therefore, not bound to take judicial notice of the laws of another State.”
As early as Monroe v. Douglass (5 N. Y. 447) the Court of Appeals said: “ It is a well-settled rule, founded on reason and authority, that the lex fori, or, in other words, the laws of the country to whose courts a party appeals for redress, furnish in all
Of the rule so laid down, this court in Latham v. de Loiselle (3 App. Div. 525) said: “Two propositions are included in this rule proclaimed in the case cited, viz., that when the suitor is properly in court upon his contract, a remedy will be afforded according to the law of the State of Hew York, and the contract stipulations enforced unless a different law governing that contract is made to appear, and that to make it appear it must be set up by the party claiming advantage under it.”
■In Fidelity & Casualty Co. v. Wells (49 App. Div. 171) this court said: “ If,, as is claimed by the defendant, the law of Pennsylvania differs in that regard from ours, no presumption to that effect exists, but that law must be alleged as a fact, and until it is so alleged and proven, we must assume that this contract wherever made is to be construed under the rules .of the common law as applied in' the State" of Hew York. (Monroe v. Douglass, 5 H. Y.-447.)”
In Stuart v. New York Herald Co. (73 App. Div. 459) this court, in reversing a judgment in favor of the plaintiff in an action for libel, said: “ There was error committed by the court in allowing, over the objection of the defendant, proof of a Hew Jersey .statute making adultery a crime. That statute was not pleaded. Adultery is not a crime at common law, nor in the State of Hew York. Being a crime in the State of Hew Jersey, that should have. been pleaded.”
In Union National Bank v. Chapman (169 N. Y. 538) the rules were formulated as to the law applicable to the interpretation and the enforcement of contracts, and the defendant was held not liable because by the law of the State of Alabama, where she made her contract, she had no capacity to make the contract in question. In that case, as will be seen on the appeal upon the first trial, reported in 7 Appellate Division, 452, the defendant set up three affirmative
Section 511 of the Code of Civil Procedure provides that: “ Where the answer of the defendant, expressly or by not denying, admits a part of the plaintiff’s claim to be just, the court, upon the plaintiff’s motion, may, in its discretion, order that the action be severed ; that a judgment be entered for the plaintiff for the part so admitted, and if the plaintiff so elects, that the action be continued with like effect as to the subsequent proceedings as if it had been originally brought for the remainder of the claim.” Section 547 of the same Code (added by Laws of 1908, chap. 166) provides: “ If either party is entitled to judgment upon the pleadings the court may, upon motion, at any time after issue joined, give judgment accordingly.”
As it appears that the contract is admitted, and that 874,930 pictures had been delivered to and used by the defendant in the month of [November, 1907, and that $4,812.10 became due therefor on the 1st'of December, 1907, of which $733.21 had been paid, leaving a balance of $4,078.89 due ; and that 518,400 pictures had been delivered in December, 1907, approximately one-half of which had been used, and for which $2,851.18 became due on the 1st of January, 1908, no part of which had been paid, and as no defense has been set up in the answer, the plaintiff was entitled to an order of severance and for judgment as prayed.
The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted, with ten .dollars costs to the appellant.
Ingraham, McLaughlin, Laughlin and Scott, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.