Opinion
December, 1921, Term. Filed January, 1922.
Hardy, Stancliffe Whitaker (Noah A. Stancliffe and John L. Farrell, of counsel), for appellant.
Leon Dashew, for respondent.
Defendant sold and delivered to plaintiff for shipment to Belgium 300 cases of condensed milk guaranteed for a period of six months from date of shipment against "swells, coagulations, etc." In the original contract defendant agreed to furnish the "Thrift" brand, but by reason of the fact as represented that defendant could not procure this particular brand, "Freedom" brand was substituted with plaintiff's consent.
Defendant gave no evidence on the trial, and the only question submitted to the jury by the court was the amount of plaintiff's damage.
Plaintiff claimed on the trial to have proven defendant's breach of the guarantee by a survey report filed with the clerk of the Court of Commerce of Brussels on June 28, 1920, "in the case Delhaize Freres Cie of Brussels [plaintiff's principals] versus Liberty Export Company, Woolworth Building, New York;" the survey being certified over the seal of the American consul at Brussels. In the survey the milk is sufficiently identified as that covered by the complaint in this action, and it is stated therein that certain of the cans had bulged and that the milk therein had fermented and was unsuitable for human consumption, and the loss was estimated at two-thirds of the 300 cases furnished.
The court held under proof given at the trial as to the Belgium law that the report was prima facie evidence of its contents.
Before suit was brought a copy of the survey was sent to defendant in response to a request in its letter to plaintiff's principals, dated May 14, 1920, to supply defendant "with a full and complete affidavit signed by the American consul in Brussels before we can obtain the necessary action in connection with the manufacturers."
Appellant contends that the papers making up the survey were not properly authenticated in accordance with section 957 of the Code; that there is no proof that under the law of Belgium the secretary of the Belgium court was charged with the duty of keeping documents of the character of the survey and no proof that under that law the paper was entitled to any degree of credence; that the report was not proof of the contents thereof; and that there is nothing in the record to show whether the survey was a judgment or only the equivalent of a deposition, or merely a report.
Aside from the points of lack of due authentication of the report and as to the proper custodian of such document it seems to me that the objection that there is nothing before us which warrants us in considering the statements of the survey as evidence against the defendant is well taken, because there is nothing to show that the Belgian court acquired jurisdiction of the defendant. Geduld v. B. O.R.R. Co., 55 Misc. 239; Shepard v. Wright, 59 How. Pr. 512; Eytinge v. Atlantic Transport Co., 160 A.D. 635. It is true that it is stated in the document that the person appointed by the Belgian court to make the survey called on the American consul at Brussels, who declared that "a survey is carried out by an expert and the survey report is submitted to the consul for his approval if any. This document called an affidavit is conclusive before the American courts of law." But the respondent has not called our attention to any provision of law which justified the statement reported to have been made by the American consul.
It follows that the judgment must be reversed and a new trial ordered, with costs to appellant to abide the event.
GAVEGAN and MULLAN, JJ., concur.
Judgment reversed and new trial ordered with costs to appellant to abide event.