Belding Heminway Co. v. Slater Mills, Inc.

247 A.D. 346, 289 N.Y.S. 1062, 1936 N.Y. App. Div. LEXIS 8258

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 1, 1936
• Status: Published

Opinion

Per Curiam.

The first cause of action does not allege the purchase of cloth by the plaintiff from the Allentown Silk Company, Inc., and the purchase of yarn by the Allentown Silk Company, Inc., .from the defendant. It alleges that the defendant represented that it would “ be able to sell only the yarn to the plaintiff and that it would be necessary, therefore, for plaintiff, if it wished to purchase said spun rayon yarn of defendant, to procure an independent weaving firm to weave such spun rayon yarn into cloth.” It further alleges that the defendant “ made such representations to plaintiff to induce plaintiff to purchase its said spun rayon yarn ” and that it was agreed that the Allentown Silk Company, Inc., “ should purchase from defendant for the plaintiff’s account ” the yarn required to be converted into cloth.

These allegations, alleging a direct sale of yarn from the defendant to the plaintiff, preclude consideration of the question sought to be presented on this appeal, and require the affirmance of the order appealed from, with leave, however, to the plaintiff to serve an amended complaint.

The order should be affirmed, with twenty dollars costs and disbursements, with leave to the plaintiff to serve an amended complaint within twenty days after service of order upon payment of said costs.

Present — Martin, P. J., Glennon, Untermyer, Dore and Cohn, JJ.

Order unanimously affirmed, with twenty dollars costs and disbursements, with leave to the plaintiff to serve an amended complaint within twenty days after service of order upon payment of said costs.