Loftus v. Carlton

164 A.D. 879, 148 N.Y.S. 556

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 15, 1914
• Status: Published

Opinion

Scott, J.:

The plaintiff alleges himself to be the assignee of all the assets of the Kennedy Features, Inc., a corporation organized under the laws of California. The defendant Carlton is a creditor of the corporation and received from Mr. A. M. Kennedy, who had the general management, of-the company’s business, in the city of Hew York, negatives from which Carlton was to furnish positives to the Kennedy Features, Inc.,, whose business was the furnishing of films to moving picture enterprises. The negatives were given to Carlton under an agreement which provided that if the Kennedy Features, Inc., were in arrears for the period of seven days, Carlton might sell the negatives for the purpose of realizing the indebtedness of the Kennedy Features, Inc., to him. The contract provided that the sale might be made on twenty-four hours’ written notice, and that Carlton might sell or otherwise realize upon all property or properties of the Kennedy Features, Inc., then in Carlton’s possession for the payment of moneys that might be due to him, and that this sale might be without process of law and without recourse. On April 15, 1914, the Kennedy Features, Inc., being then indebted to Carlton, he served a notice upon them, and after some time sold the property, at private sale, to the defendant Harry F. McGarvie. The bonafldes of this sale is strenuously attacked by plaintiff, and it certainly does not appear to be above suspicion. However that may be, the pretended sale by Carlton was clearly unauthorized by the terms of the contract. The agreement was that a sale might be made “upon twenty-four hours’ written notice,” meaning obviously notice of the time, place and manner of sale. The notice which was given was not at all such a notice. It notified the Kennedy Features, Inc., that it had violated the contract by failing to make payments in accordance therewith. It then contained this sentence: “ Said James L. Carlton now has the right to proceed as provided in Article Ho. 6.” Here was no notification of an intention to sell, or of the time, place and manner in which it was proposed to make a sale. It was a mere assertion of Carlton’s right to sell if he elected to do so. Obviously this was not such a notice as was contemplated by the contract. The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to continue the injunction pendente lite granted, with ten dollars costs. Ingraham, P. J., McLaughlin, Dowling and Hotchkiss, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion to continue injunction pendents lite granted, with ten dollars costs.