Gwalter v. New York Seal Plush & Tapestry Co.

New York Supreme Court

Gwalter v. New York Seal Plush & Tapestry Co.

19 N.Y.S. 49, 46 N.Y. St. Rep. 137

DecidedMay 13, 1892

StatusPublished

This text of 19 N.Y.S. 49 (Gwalter v. New York Seal Plush & Tapestry Co.) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gwalter v. New York Seal Plush & Tapestry Co., 19 N.Y.S. 49, 46 N.Y. St. Rep. 137 (N.Y. Super. Ct. 1892).

Pincite

Opinion

Per Curiam.

The attachment was properly granted upon an affidavit disclosing a sufficient cause of action for goods sold and delivered, and showing that the defendant is a foreign corporation. The motion to vacate was based upon affidavits tending to show that the goods were sold upon a cred.t which had not expired at the time of the commencement of the action. The plaintiff met these affidavits by affidavits charging and tending to prove fraud in the original sale. It seems to us quite clear that the question of fact thus presented was properly remitted to the trial of the action, and that the court correctly decided that the attachment should not be disturbed. The defendant is in error in supposing that it was necessary for the plaintiff to set forth in his affidavit, or even in his complaint, the credit in question, and to allege, as a basis for rescission, fraud in the original contract of sale. It is well settled in this state that the plaintiff, under such circumstances, may rescind the credit, and sue at once for the value of the goods, leaving the question of fraud to be determined upon the trial, should the defendant set up the credit in his answer. If the credit be thus set up, the plaintiff, upon the trial, may properly rest upon proof of the sale and delivery of the goods. The defendant may then prove an unexpired credit, and at that stage the plaintiff, by way of rebuttal, may prove the fraud. The affidavits read in opposition to the present motion make out a case of fraud amply sufficient to warrant the presentation of that question to a jury. It is quite clear that what may thus properly be presented at the trial and there submitted for the determination of a jury should not now be ignored, nor should the verdict of the jury thereon be forestalled upon a mere preliminary motion of this character. The order appealed from should be affirmed, with $10 costs and disbursements.

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Per Curiam.

The attachment was properly granted upon an affidavit disclosing a sufficient cause of action for goods sold and delivered, and showing that the defendant is a foreign corporation. The motion to vacate was based upon affidavits tending to show that the goods were sold upon a cred.t which had not expired at the time of the commencement of the action. The plaintiff met these affidavits by affidavits charging and tending to prove fraud in the original sale. It seems to us quite clear that the question of fact thus presented was properly remitted to the trial of the action, and that the court correctly decided that the attachment should not be disturbed. The defendant is in error in supposing that it was necessary for the plaintiff to set forth in his affidavit, or even in his complaint, the credit in question, and to allege, as a basis for rescission, fraud in the original contract of sale. It is well settled in this state that the plaintiff, under such circumstances, may rescind the credit, and sue at once for the value of the goods, leaving the question of fraud to be determined upon the trial, should the defendant set up the credit in his answer. If the credit be thus set up, the plaintiff, upon the trial, may properly rest upon proof of the sale and delivery of the goods. The defendant may then prove an unexpired credit, and at that stage the plaintiff, by way of rebuttal, may prove the fraud. The affidavits read in opposition to the present motion make out a case of fraud amply sufficient to warrant the presentation of that question to a jury. It is quite clear that what may thus properly be presented at the trial and there submitted for the determination of a jury should not now be ignored, nor should the verdict of the jury thereon be forestalled upon a mere preliminary motion of this character. The order appealed from should be affirmed, with $10 costs and disbursements.

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Bluebook (online)

19 N.Y.S. 49, 46 N.Y. St. Rep. 137, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gwalter-v-new-york-seal-plush-tapestry-co-nysupct-1892.