Coastal Commercial Corp. v. Samuel Kosoff & Sons, Inc.

Appellate Division of the Supreme Court of New York

Coastal Commercial Corp. v. Samuel Kosoff & Sons, Inc.

15 A.D.2d 730, 223 N.Y.S.2d 527, 1962 N.Y. App. Div. LEXIS 12128

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 10, 1962

StatusPublished

Cited by1 cases

This text of 15 A.D.2d 730 (Coastal Commercial Corp. v. Samuel Kosoff & Sons, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Coastal Commercial Corp. v. Samuel Kosoff & Sons, Inc., 15 A.D.2d 730, 223 N.Y.S.2d 527, 1962 N.Y. App. Div. LEXIS 12128 (N.Y. Ct. App. 1962).

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Opinion

Memorandum:

The trial eourt properly directed a verdict in favor of plaintiff at the close of the evidence. There was overwhelming proof that Ammerman was authorized to act for the alleged assignor, Industrial Air Conditioning Corporation (hereinafter “Industrial”), If doubt remained it was dissolved by the proof offered [731]*731by the appellants. In an attempt to prove one of the affirmative defenses of the defendant, Kosoff, the witness, Cashier, testified that he met with Ammerman, who was representing Industrial, and had conversations with him. If this issue had been submitted to the jury it could riot have found by any rational process that Ammerman was not authorized to act for Industrial. Therefore, the direction of a verdict was proper. (Cf. Blum v. Fresh Grown Preserve Carp., 292 N. Y. 241, 245.) Similarly, there is no merit to the second contention of defendant that the assignment of the account by Industrial to plaintiff was void under the provisions of the Lien Law. These defenses were not presented in the answer or upon the trial, but were raised for the first time on appeal. “ A defense which was not pleaded or urged on the tria!, and which the plaintiff might have been able to overcome if it had been raised there, is not available for the first time on appeal, either to sustain a judgment for the defendant or to reverse a judgment in favor of the plaintiff.” (9 CarmodyWait, New York Practice, § 328, p. 29 and eases therein, cited.) (Appeals from judgment of Onondaga Trial Term in favor of plaintiff against defendant Kosoff & Sons; in favor of Kosoff & Sons and against the third-party defendant Lincoln Bank & Trust Co.; and in favor of said Lincoln Trust Co. and against the third-party defendants Cashier & Co. and Foley, In an action by assignee to recover for work, labor and materials furnished to defendant.) Present — Bastow, J. P., Goldman, Halpem and Henry, JJ.

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Memorandum:

The trial eourt properly directed a verdict in favor of plaintiff at the close of the evidence. There was overwhelming proof that Ammerman was authorized to act for the alleged assignor, Industrial Air Conditioning Corporation (hereinafter “Industrial”), If doubt remained it was dissolved by the proof offered [731]*731by the appellants. In an attempt to prove one of the affirmative defenses of the defendant, Kosoff, the witness, Cashier, testified that he met with Ammerman, who was representing Industrial, and had conversations with him. If this issue had been submitted to the jury it could riot have found by any rational process that Ammerman was not authorized to act for Industrial. Therefore, the direction of a verdict was proper. (Cf. Blum v. Fresh Grown Preserve Carp., 292 N. Y. 241, 245.) Similarly, there is no merit to the second contention of defendant that the assignment of the account by Industrial to plaintiff was void under the provisions of the Lien Law. These defenses were not presented in the answer or upon the trial, but were raised for the first time on appeal. “ A defense which was not pleaded or urged on the tria!, and which the plaintiff might have been able to overcome if it had been raised there, is not available for the first time on appeal, either to sustain a judgment for the defendant or to reverse a judgment in favor of the plaintiff.” (9 CarmodyWait, New York Practice, § 328, p. 29 and eases therein, cited.) (Appeals from judgment of Onondaga Trial Term in favor of plaintiff against defendant Kosoff & Sons; in favor of Kosoff & Sons and against the third-party defendant Lincoln Bank & Trust Co.; and in favor of said Lincoln Trust Co. and against the third-party defendants Cashier & Co. and Foley, In an action by assignee to recover for work, labor and materials furnished to defendant.) Present — Bastow, J. P., Goldman, Halpem and Henry, JJ.

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Bluebook (online)

15 A.D.2d 730, 223 N.Y.S.2d 527, 1962 N.Y. App. Div. LEXIS 12128, Counsel Stack Legal Research, https://law.counselstack.com/opinion/coastal-commercial-corp-v-samuel-kosoff-sons-inc-nyappdiv-1962.

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