220 A.D. 649 | N.Y. App. Div. | 1927
Is the plaintiff entitled to have the denials of the answer stricken out as sham and be granted judgment on the pleadings, or, in the alternative, be granted summary judgment under rule 113 of the Rules of Civil Practice? We are of the opinion that the plaintiff is entitled to the relief prayed for upon both grounds of the motion.
The plaintiff brought an action to recover damages for breach of contract against a corporation known as Society Michlin & Sons, Ltd., organized under the laws of the Republic of Latvia and hereinafter referred to as the Latvian corporation. During the pendency of said action an agreement was entered into between the plaintiff and the Latvian corporation for the compromise and
The Latvian corporation failed to pay one of the notes for $500 when it became due, whereupon the plaintiff exercised its right under the agreement to declare the other note for $500 immediately due and payable. There was also a failure on the part of the Latvian corporation to deliver the total number of skins provided for by the aforesaid agreement of compromise. The plaintiff accordingly entered judgment against the Latvian corporation for the sum of $2,234.45, as it was entitled to do by the express terms of the compromise agreement. The judgment with notice of entry was served on the attorney for the Latvian corporation, notice of non-payment given to these defendants and demand for payment made upon them.
The answer of the defendants contained certain denials which, however, do not put in issue any of the material allegations of the complaint. The defendants set up two affirmative defenses to the action. The first defense is that the defendants’ guaranty
Taking up now the so-called defense of substantial performance. This defense alleges that the Latvian corporation was unable to pay the note for $500 first becoming due, whereupon the plaintiff unreasonably declared the other note to be immediately due and payable. The conclusion is then stated that the omission to deliver the full amount of the skins could be remedied at a cost not to exceed $77.49, calculated on an allowance of six cents on each skin undelivered, which amount, together with the sum of $1,000 to cover the additional defaults in payment of the two notes, made a total sum of $1,077.49. This sum the defendants admit is due, and offer to pay. The real dispute between the parties involved in this defense, therefore, comes down to what the agreement between the plaintiff and the Latvian corporation provided. Said agreement did not provide for a payment of six cents per skin for any skins undelivered, but expressly provided that, in the event of failure to deliver the total number of skins called for by the contract, the damages should be arrived at by deducting from the sum of $5,000 a credit of six cents for each skin delivered. The judgment obtained by the plaintiff against the Latvian corporation is strictly in accordance with the terms of the contract, which terms are not ambiguous. Furthermore, the defendants had notice of the application for judgment against the Latvian corporation and an opportunity to oppose the same. ' One of the defendants in fact submitted an affidavit in opposition to the
. It follows that the order appealed from should be reversed, with ten dollars costs and disbursements, and the plaintiff’s motion for judgment against the defendants granted, with ten dollars costs.
Dowling, P. J., Mebbell and McAvoy, JJ., concur.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.