Benjamin v. First Citizens Bank & Trust Co.

248 A.D. 610, 287 N.Y.S. 947

Opinion

Appeal from order granting motion to dismiss the complaint on the ground that it fails to state facts sufficient to constitute a cause of action, and from the judgment entered thereon. Plaintiff’s assignor, a resident of South Africa, came to New York, at the instance of defendant, to attend an auction which had been advertised for the sale of certain valuable stamps. The sale was to be without reserve. It did not take place. In the catalogue which was sent to plaintiff’s assignor, references were made to foreign buyers. Plaintiff sought as damages his expenses and loss of time. The complaint did not state facts sufficient to constitute a cause of action. (1) Goods offered for sale at auction may be withdrawn before any bidding, even where the sale is without reserve; (2) there was no special contract between the parties by which plaintiff’s assignor agreed to attend an auction sale in New York. It is doubtful that the executor could bind the estate by a contract such as that claimed by plaintiff. In view of the above conclusion, the order and judgment are unanimously affirmed, with ten dollars costs and disbursements. Present—• Lazansky, P. J., Young, Hagarty, Carswell and Taylor, JJ.