Pakas v. Hollingshead

City of New York Municipal Court

Pakas v. Hollingshead

60 N.Y.S. 991

DecidedNovember 21, 1899

StatusPublished

This text of 60 N.Y.S. 991 (Pakas v. Hollingshead) is published on Counsel Stack Legal Research, covering City of New York Municipal Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Pakas v. Hollingshead, 60 N.Y.S. 991 (N.Y. Super. Ct. 1899).

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Opinion

CONLAN, J.

This is an appeal from an interlocutory judgment overruling a demurrer to the complaint, on the ground that the same does not state facts sufficient to constitute a cause of action. The contract upon which suit is brought was an executory contract, providing for future delivery, the terms being, “sight draft, with documents attached; deliveries to begin immediately.” The complaint alleges the failure to deliver more than a small portion of the goods contracted for, and a demand and refusal for the delivery of the balance. The defendants’ contention is that, in order to lay a foundation for the action, there must have been an offer of payment accompanying the demand. The contract does not so state.- The terms, “sight draft, with documents attached,” are a condition imposed upon the defendants; for, surely, the plaintiff was not to make any drafts upon the defendants to pay for goods which the defendants were to deliver. If the terms imposed mean anything, they mean that a draft was to be made to accompany the bill of goods delivered, and the making of that draft was the office of the defendants; so that a refusal to deliver left no provision or necessity for a draft to be made or tendered with the bill of goods, as there had been no delivery or tender of the goods, and consequently no obligation created to pay for the same. But there had been a demand for delivery, and a refusal to deliver, and this relieves the plaintiff, and the ¿negations in the complaint were sufficient to entitle the plaintiff to recover. The order overruling the demurrer was one resting in the discretion of the justice making the same, and an opportunity was given to defendants to answer on terms, part of which was the giving of security. This is not an unusual course of events, and we are not disposed to interfere with the discretion exercised at special term.

We think the judgment should be affirmed. All concur.

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CONLAN, J.

This is an appeal from an interlocutory judgment overruling a demurrer to the complaint, on the ground that the same does not state facts sufficient to constitute a cause of action. The contract upon which suit is brought was an executory contract, providing for future delivery, the terms being, “sight draft, with documents attached; deliveries to begin immediately.” The complaint alleges the failure to deliver more than a small portion of the goods contracted for, and a demand and refusal for the delivery of the balance. The defendants’ contention is that, in order to lay a foundation for the action, there must have been an offer of payment accompanying the demand. The contract does not so state.- The terms, “sight draft, with documents attached,” are a condition imposed upon the defendants; for, surely, the plaintiff was not to make any drafts upon the defendants to pay for goods which the defendants were to deliver. If the terms imposed mean anything, they mean that a draft was to be made to accompany the bill of goods delivered, and the making of that draft was the office of the defendants; so that a refusal to deliver left no provision or necessity for a draft to be made or tendered with the bill of goods, as there had been no delivery or tender of the goods, and consequently no obligation created to pay for the same. But there had been a demand for delivery, and a refusal to deliver, and this relieves the plaintiff, and the ¿negations in the complaint were sufficient to entitle the plaintiff to recover. The order overruling the demurrer was one resting in the discretion of the justice making the same, and an opportunity was given to defendants to answer on terms, part of which was the giving of security. This is not an unusual course of events, and we are not disposed to interfere with the discretion exercised at special term.

We think the judgment should be affirmed. All concur.

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Bluebook (online)

60 N.Y.S. 991, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pakas-v-hollingshead-nynyccityct-1899.