116 N.Y.S. 124 | N.Y. App. Div. | 1909
The defendant appeals from an order denying his motion to vacate an order of arrest, the motion being made upon the papers on which the order was granted. These papers consist of a complaint and an affidavit, both verified by one of the plaintiff’s attorneys. The complaint is a curiously unscientific pleading, and it is not easy to determine just what cause of action is sought to be stated, or whether any is sufficiently stated. It alleges a written contract between plaintiff on the one hand and defendant and one Hans Boellert, of Berlin, Germany, on the other, under the terms of which defendant and Boellert agreed to sell to plaintiff a large number of incandescent kerosene mantle burners of a certain kind, and to guarantee plaintiff the exclusive right to sell in certain territory. The plaintiff agreed to pay to defendant and Boellert the sum of §7,800, to be in payment of one-qunrter of the total amount to be paid to said defendant and Boellert, the remaining three-quarters to be paid on each order upon delivery of each shipment of burners. It was agreed that plaintiff might at any time at its option rescind the contract, in which event defendant and Boellert agreed to repay to plaintiff all moneys paid to them, plaintiff to have the option to take such payment in cash or burners; payment to be made within fifteen days after notice of rescission. The complaint alleges compliance by plaintiff with the terms of the agreement and the payment of §7,800 to defendant in accordance therewith on February 7, 1908; that on April 6, 1908, defendant repudiated the said contract, and on April 30, 1908, plaintiff notified defendant that it elected to rescind the contract and demanded the return of the money paid, which has not been returned, although more than fifteen days have elapsed. It is then alleged that before the ma ling of said contract defendant represented to plaintiff that he, said defendant, was the agent of said Boellert, and duly authorized to make the agreement for him as agent; that he, said defendant, was able to and would protect plaintiff in all its rights under said agreement, and that the deposit of §7,800 was required by Hans Boellert as a guaranty of good faith, and would be immediately transmitted to him; that plaintiff relied upon said representations and by reason thereof executed the agreement and paid over the money; thav said representations were false and intended to and did deceive plaintiff; that defendant was not authorized to enter into such agreement for said Boellert as his, Boellert’s, agent; that defendant was not able and knew that he was not able to protect plaintiff in its rights under said agreement, and that said Boellert did not require a deposit of §7,800, or any sum, as a guaranty of good faith; that defendant did not send said moneys forward to Boellert, pr advise the said Boellert that the same had been received, nor advise said Boellert that the agreement had been entered into, but wrongfully and with intent to