205 A.D. 749 | N.Y. App. Div. | 1923
This action in which summary judgment under rule 113 of the Rules of Civil Practice has been granted was brought to recover damages against the defendant as president of the Adams Express Company for the value of goods delivered to said express company for transportation, which the complaint alleges were either lost or damaged in transit through the negligence, carelessness, inattention and omission of said Adams Express Company. The complaint contains fourteen causes of action. Five are for loss or damage of merchandise shipped by outside parties to the plaintiff; nine arise on account of shipments from the plaintiff to its customers, as to each of which the plaintiff sues as the owner of the claim under an assignment thereof by the consignee to the plaintiff. With these exceptions the various causes of action are substantially similar as alleged in the complaint. In each cause of action after alleging suitable allegations as to the plaintiff as a corporation existing under the laws of the State of New York and having its principal place of business in this State and that the defendant is the president of the Adams Express Company, an unincorporated association having its principal place of business in this State and being engaged as a common carrier, it alleges a delivery of goods to the defendant carrier and an agreement to safely carry and deliver the same in accordance with its published schedule of tariff rates; that said express company did not safely carry and deliver the same but carelessly and negligently conducted itself so that said goods were never delivered to the consignee or were delivered in such condition as to be of no value to the consignee; that the goods when so delivered to the express company were reasonably worth a sum stated in the complaint, the damage of the plaintiff, which damage was the proximate result of the negligence, carelessness and inattention of the express company; that a claim for such loss was made in writing to the carrier at the point of delivery within four months after the shipment and that the express company has not paid or satisfied said claim.
Upon this state of the pleadings a motion was made by the plaintiff for an order striking out the defendant’s answer and for an order directing summary judgment in favor of the plaintiff for the amount demanded in the complaint under rule 113 of the Rules of Civil Practice. The plaintiff presented two affidavits in support of the motion, one by an officer of the plaintiff, claiming to have knowledge as to the condition of incoming shipments and supervision over shipment of goods by the plaintiff and another by the attorney for the plaintiff. The defendant contented itself in presenting an affidavit by its attorney which did not controvert the facts set forth in the affidavits presented on behalf of the plaintiff but tended only to indicate that the plaintiff’s affidavits were not based upon that personal knowledge of the facts alleged in the complaint which is required by rule 113. The power of the court upon application for summary judgment “ ‘ should be exercised with care, and not extended beyond its just limits.’ ” (General Investment Co. v. Interborough R. T. Co., 235 N. Y. 144.) We think that the power of the court was exercised in this case with doubtful propriety considering the affidavits presented by the plaintiff and the doubtful probabilities as to whether the affiants for the plaintiff had the personal knowledge which the rule requires. We have decided, however, to reverse this order upon the ground that rule 113 does not apply to an action of this character. We do not think it is a cause of action “ to recover a debt or liquidated demand arising * * * on a contract, express or implied, sealed or not sealed,” within the purview of rule 113.
Rule 113 of our Rules of Civil Practice is based on similar rules in the English Rules of the Supreme Court. (Order 3, rule 6, and order 14, rule 1.) As stated by Mr. Justice McAvoy in Wile v. Nassau Smelting & Refining Works, Ltd. (205 App. Div. 657),
The order and judgment should be reversed, with costs.
H. T. Kellogg, Acting P. J., Van Kirk and Hasbrouck, JJ., concur.
Order and judgment reversed upon the law, with costs.