208 A.D. 826 | N.Y. App. Div. | 1924
On this motion for a reargument the defendant has called attention to the fact that the damages upon the second cause of action have been assessed as of 1921, while we have stated that the breach was complete in 1918. The communications of the plaintiff made after 1918 in response to the defendant’s requests for information as to the number of undelivered bales, included among the number undelivered those covered by the third contract (April 24, 1918). While the breach of that contract was complete in August, 1918, we think on further consideration that these communications were evidence that the parties thereafter still elected to treat this contract as a subsisting, unfulfilled obligation and that the court was justified in concluding that the plaintiff was entitled to regard the refusal by the defendant in 1921 to take any further deliveries, as relating to the third as well as to the second contract. The motion for a. reargument should be denied, and the motion for leave to appeal to the Court of Appeals granted. All concur. Motion for reargument denied. Motion for leave to appeal to Court of Appeals granted.
