Northwestern Terra Cotta Co. v. J. F. Starkey & Co.

182 A.D. 665, 169 N.Y.S. 495, 1918 N.Y. App. Div. LEXIS 7900

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 8, 1918
• Status: Published

Opinion

Davis, J.:

It is alleged in'the amended complaint that plaintiff purchased a quantity of graphite from the defendant in reliance upon representations as to the quality of the graphite by the president of the defendant; that these representations were false; that the plaintiff had rescinded the contract after inspection of the graphite and that plaintiff was entitled to the return of the amount paid for the graphite.

Two causes of action are stated, one on the theory that the alleged false representations were made to one Beebe with the intention that they should be reported to and acted upon by the plaintiff, and the second on the theory that the sale was made to Beebe and that Beebe had transferred all his rights to the plaintiff.

The order is too general in its provisions. It should be modified by limiting the examination to the subject of the ownership of the graphite, the place where produced, its quality, kind and cost, and to inquiries as to the alleged false representations.

The order as thus modified is affirmed, with costs to thei appellant.

Clarke, P. J., Scott, Smith and Shearn, JJ., concurred.

Order modified as stated in opinion and as modified affirmed, with ten dollars costs and disbursements to appellant. Order to be settled on notice. Motion for stay denied and stay vacated.