195 A.D. 878 | N.Y. App. Div. | 1921
The complaint contains two counts, both based on a contract made November 6, 1919, for the sale of not less than forty nor more than fifty cases, at the option of the plaintiff, of artificial silk of two qualities described as third and fourth grade, each case to consist of 220 pounds, at seven dollars and ninety cents per pound for the third grade and seven dollars and fifty cents per pound for the fourth grade, to be delivered on the arrival of the goods from Holland between January 1 and September 1, 1920. The demurrer is to each count. In the first count it is alleged that on the 11th of March, 1920, plaintiff delivered one case of the goods to the defendant and that the goods were accepted and retained by him but not paid for; that the plaintiff thereafter duly offered to deliver and tendered five additional cases of the goods but the defendant wrongfully and in violation of the agreement failed and refused to accept the same and that the plaintiff at all times since has been and .still is ready, willing and able to deliver the goods to the defendant and has ever since held and now holds them for the account and subject to the order of the defendant. Judgment is demanded for the contract purchase price of the goods delivered and of the goods the delivery of which was refused. The second count realleges, by reference, the facts alleged in the first count, and charges that the defendant subsequently repudiated the contract and refused to accept any further deliveries thereunder and that by reason of the premises the plaintiff has sustained 'damages in the sum of $22,880, payment of which has been duly'demanded but not made. Judgment is demanded for the amount specified in the second count. I am of opinion that neither count of the complaint was subject to demurrer for insufficiency. It may be that under our decision on the appeal by the defendant in action No. 1 between the same parties (195 App. Div. 873), which was argued and is to
It follows that the order should be affirmed, with ten dollars costs and disbursements, with leave to defendant, to withdraw demurrer and to answer on payment of said costs and ten dollars costs of motion at Special Term.
Clarke, P. J., Dowling, Smith and Greenbaum, JJ., concur.
Order affirmed, with ten dollars costs and disbursements, wi 'a leave to defendant to withdraw demurrer and to answer on Payment of said costs and ten dollars costs of motion at Sptcial Term.