Winter v. American Aniline Products, Inc. , 204 A.D. 792 ( 1923 )

Page, J.:

The motion was made under rule 112 of the Rules of Civil Practice. The learned judge at Special Term held that the defendant could not make a motion for judgment against itself. Rule 112 is section 547 of the Code of Civil Procedure, with the words “"and without regard to which party makes the motion ” added thereto. The purpose of this addition to the rules was to do away with the necessity of a second motion, where one party moved for judgment; as for instance, the plaintiff moved for judgment on the pleadings against the defendant, and it was evident that the complaint was insufficient, by the decisions construing section 547, the court could only deny the motion and leave the defendant to a subsequent motion for judgment dismissing the complaint. By broadening the provision in rule 112, it was the intention to enable the court at Special Term upon such a motion to render judgment in favor of either party, and any judgment that could be granted by the court at the trial can now be granted by the court at Special Term. If, for instance, the complaint sought to recover ■ a certain sum of money, and the answer contained a counterclaim for a less sum and the plaintiff failed to reply to the counterclaim, the defendant, admitting that the difference between the amount claimed in the complaint and the counterclaim was due, could move at the trial that judgment be directed for the plaintiff for such amount. (Mecca Realty Co. v. Kellogg Toasted Corn Flakes Co., 85 Misc. Rep. 598; affd., 166 App. Div. 74; affd., 221 N. Y. 724.) Therefore, in my opinion, the learned justice at Special Term erred in holding that the defendant was not entitled to make this motion.

The complaint in this case is brought for damages for the nonacceptance of goods under a contract of sale. The contract is as follows:

“ F. W. Mead & Co., contract

“ Brokers

“ 124 Front Street, New York, May 10, 1920.

“ Sold to American Aniline Products, Inc., 80 Fifth Ave. On Account of H. P. Winter & Co., 64 Wall St. About thirty-three hundred (3300) lbs. usual good quality Oil of Lemongrass packed in drums at thirteen shillings and three-quarter pence (13|d.) per lb. cif New York FPA; invoice shipping weights to be an Aug/Nov/Shipment from India.

Terms: 30 days net after arrival of steamer.

" (Signed) F. W. MEAD & CO.”

“ Brokers

“ Accepted Buyers

“(Signed) H. P. Winter & Co.”

The plaintiffs allege their damage to be the difference between the contract price estimated by the exchange value of shillings and pence on April 5, 1921, the day when payment would have been due had the tender been accepted, and the market price on March eighth, the day the goods were tendered. The proper measure of damage was the difference between the contract price estimated in the value of shillings and pence on the day of the breach (Hoppe v. Russo-Asiatic Bank, 235 N. Y. 37), and the current market price on that date. Because, if there was a market for the goods on that day the plaintiffs could have sold the goods and thus minimized the damage, which they were required to do. If the defendant had accepted the goods when tendered, it could have purchased the foreign exchange on that day and paid in the shillings and pence so purchased. The plaintiffs have, therefore, failed to state the facts which show their damage. (Waumbek Mfg. Co., Inc., v. Alfandri, 196 App. Div. 64.) As the defendant, for the purposes of this motion, admits a breach of the contract, the plaintiffs would be entitled to judgment for nominal damages. The motion should have been granted.

The order should be reversed, with ten dollars costs and disbursements, and the defendant’s motion granted, with ten dollars costs, with leave, however, to the plaintiffs to serve, within ten days after the service of the order to be entered herein, a third amended complaint upon the payment of such costs.

Clarke, P. J., Dowling, Smith and McAvoy, JJ., concur.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to serve a third amended complaint within ten days after service of order upon payment of said costs.