179 A.D. 505 | N.Y. App. Div. | 1917
On May 1, 1915, the plaintiff and the defendant entered into a contract in writing, in continuation of contracts of previous years between the parties, by which the defendant undertook to supply the plaintiff, at specified prices, with all the molasses which he should require in his regular business of veterinarian and dealer in stable and dairy supplies for one year from that date, the same to be shipped f. o. b. New York as per purchaser’s orders. Up to February 12, 1916, the defendant had filled orders under the contract for 964 barrels which was 122 barrels more than the plaintiff had required in any previous year. On the latter date the defendant notified the plaintiff that it would no longer supply the plaintiff with molasses under the terms of the contract. The plaintiff between the time of the receipt of such notification and May 1, 1916, sent the defendant orders for molasses aggregating 2,773 barrels whifch the defendant refused to furnish, whereupon the plaintiff brought this action to recover his alleged damages of $15,251.
The answer alleged that the intent of the contract was that the defendant should furnish the plaintiff with such quantity of molasses as he should require in his regular business of veterinarian and dealer in dairy and stable supplies, and for such purposes only; but that the plaintiff in order to cheat and defraud the defendant arid interfere with its business, well knowing that owing to the unusual demand for molasses it had risen largely 'in price, embarked upon the scheme to solicit large customers of the defendant engaged in distilling and other lines of business, other than that of veterinarian and dealer in dairy and stable supplies, under the claim that said contract required the defendant to furnish the plaintiff molasses in unlimited quantities, and that the plaintiff was not acting reasonably and in good faith but was using the contract for the purpose of speculation, and not for the purpose within the contemplation of the parties.
In February, 1917, the defendant in order that it might procure testimony for use upon the trial and establish the conditions under which such orders were procured, duly moved for an order requiring the plaintiff to furnish a bill of particulars of the names and addresses of the parties from whom he
On March 17, 1917, the defendant obtained, ex parte, from a justice of the Supreme Court an order for the examination of the plaintiff before trial concerning matters relevant to the issues in the action and particularly as to whether the orders for molasses were given for the purposes of plaintiff’s business of veterinarian and of supplying his customers in stable and dairy supplies. On March twenty-first the justice granting the order granted, ex parte, upon the application of the plaintiff, an order annulling, vacating and setting aside, with ten dollars costs to plaintiff, the said order of March seventeenth upon the ground that the motion papers which consisted of the verified pleadings and two affidavits .did not set forth allegations of fact showing that the testimony sought to be elicited by the defendant from the plaintiff before trial was material and necessary for the defense of the action. From the latter order the other appeal now before us was taken.
The prehminary objection was raised upon the argument before us that an appeal did not lie to this court from the ex parte order of March twenty-first, but that to entitle the defendant to review such order a motion must first have been made to vacate the order, when if denied an appeal would lie from the order of denial. The objection must be held to have been well taken under the decisions in Stewart v. Stewart (127 App. Div. 672); Belfer v. Ludlow (144 id. 746, 750).
The case at bar is very similar to that of New York Central Iron Works Company v. United States Radiator Company (174 N. Y. 331). In that case also the contract was an open one as to the quantity of goods which the defendant was to deliver. It became bound to furnish the plaintiff “ with their entire radiator needs for the year 1899,” but required the plaintiff to deal exclusively in goods to be ordered from it under the contract, and to enlarge and develop the market for the defendant’s wares as much as possible. In the case at bar the quantity of molasses to be furnished was simply
In the case at bar such defense has been pleaded, and if proven may defeat in whole or in part the alleged cause of action. From the moving papers it appears that the defendant has no knowledge of the names and addresses of the persons, firms and corporations from whom the plaintiff claims to have received said orders for molasses, which orders he claims to have transmitted to the defendant, nor as to the dates, quantities ordered, nor prices at which the molasses aggregating 2,773 barrels was sold, the contemplated profits upon which constitute the alleged damages which he seeks to recover. Evidently, unless the defendant can be furnished with such information it cannot properly prepare for the trial of the action, but must rely very largely upon the cross-examination of the plaintiff, with little or no opportunity to call witnesses in contradiction or explanation. Doubtless the information could be more satisfactorily obtained by means of an examina
All concurred.
Order of February 12, 1917, reversed, with ten dollars costs and disbursements to the appellant, and motion granted, with ten dollars costs to appellant. Order of March 21,1917, reversed, and motion dismissed, with ten dollars costs and disbursements to respondent.