115 N.Y.S. 383 | N.Y. App. Div. | 1909
This is an action to recover commissions alleged to have been earned by the plaintiff’s assignor, one Proctor, in procuring a loan of $400,000 for the defendant. The loan was not consummated, but the plaintiff claims that his assignor procured a party ready, able and willing to make the loan upon the terms upon which he was authorized to procure it and that it was not made owing to misrepresentations on the part of defendant with respect to the security to be furnished therefor. The plaintiff alleges that the defendant was to secure the loan “ by a stock of good, pure whisky in government bond as collateral, and by $200,000 of the first mortgage six per cent gold bonds of the defendant as additional security, if required.” The plaintiff failed to present on his application for
Moreover, there is no competent evidence that the whisky which defendant intended to furnish as security was musty. We merely have the declaration of the vice-president of the Hibernian Banking Association made to plaintiff’s assignor that the banking association “ had discovered ” that more than one-half of the whisky which defendant offered to pledge was musty and was ‘not good and pure and that it refused on that ground to make the loan. This was merely hearsay. There is no evidence- that defendant identified any stock or quantity of whisky as the whisky it -intended -to offer as security, nor is there any evidence that it did not have a stock of whisky somewhere in government bond that would answer the requirements of its contract with the broker. We have not overlooked the fact that plaintiff’s assignor states in his affidavit that after the loan had been refused on the ground stated he called on the agent of defendant at Chicago and was informed by him “ that a lot of the whisky of the defendant that they had in their warehouse was musty ” and that a suit was then pending against defendant to recover $25,000 on account of an alleged sale of musty whisky. This does riot supply the. material facts. It is not an admission concerning the security.
. It follows that the order should be reversed, with ten dollars costs and disbursements, and motion to vacate the warrant of attachment granted, with ten dollars costs.
Ingraham, McLaughlin, Clarke and Scott, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.