Loeb v. Goldsmith

Full title: HORTENSE U. LOEB, Appellant, v . CHARLES P. GOLDSMITH, Respondent. SAMUEL…

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Mar 23, 1917

176 App. Div. 747 (N.Y. App. Div. 1917)

163 N.Y.S. 1022

Opinion

March 23, 1917.

Walter J. Rosenstein, for the appellants.

Alvin C. Cass, for the respondent.

SCOTT, J.:

These cases are identical in their facts, except that the plaintiffs are different. Each action is upon a promissory note made by the firm of Chas. P. Goldsmith Co., composed of the defendant and one Isaac Loeb. The cases were to have been tried together, and the complaints in both cases were dismissed upon counsel's opening.

The complaint and the opening taken together indicated that the notes had been surrendered to defendant upon his promise to deliver to the plaintiffs a quantity of jewels and precious stones which plaintiffs had consented to accept in payment of the notes, reconsigning them to defendant for sale; that after the notes had been delivered up defendant refused to fulfill his part of the agreement to deliver the jewels and precious stones, whereupon plaintiffs revoked and rescinded their agreement to accept payment of the notes in merchandise. We must assume on this appeal that the plaintiffs would have been able, if permitted, to substantiate by proof the allegations of their complaints and of the opening. So assuming it was erroneous to dismiss the complaints. The agreement to accept the merchandise in payment of the notes was never fully executed, owing to defendant's refusal to carry it out. Upon such refusal the plaintiffs were no longer bound by their agreement and were acting well within their rights in rescinding it. Their causes of action upon the notes still survived and it is that which they now seek to enforce. They are not bound to resort to the more uncertain remedy of suing for damages for defendant's refusal to carry out his agreement to deliver merchandise in payment. ( Graves v. White, 87 N.Y. 463.)

The defendant waived the objection that there was a defect of parties defendant, if there was such a defect, by failing to demur upon that ground, for the defect, if it existed, was apparent upon the face of the complaint. (Code Civ. Proc. §§ 488, 499; Ward v. Smith, 95 App. Div. 432.)

The judgments appealed from must both be reversed and new trials granted, with separate bills of costs to each appellant to abide the event.

CLARKE, P.J., LAUGHLIN, SMITH and SHEARN, JJ., concurred.

In each case judgment reversed, new trial ordered, costs to appellant to abide event.