Piel Bros. v. Inter-City Beverage Distributors, Inc.

256 A.D. 927, 9 N.Y.S.2d 634, 1939 N.Y. App. Div. LEXIS 5489

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 6, 1939
• Status: Published

Opinion

Order denying motion to dismiss counterclaim reversed on the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to defendant to serve an amended counterclaim within ten days after entry of an order hereon. The counterclaim states facts sufficient to show that Chernoff and Knobel had entered into an arrangement whereby, upon the performance of certain acts by them, plaintiff would sell beer to defendant as its exclusive distributor in certain territory and that Chernoff and Knobel performed their part of the arrangement. But it does not appear that defendan t in any wise bound itself to purchase beer from plaintiff or to act as its exclusive distributor in named territory. For that reason the counterclaim does not state facts sufficient to constitute a cause of action. There should be a concise statement in detail of what the arrangement was for the benefit of defendant and defendant’s acceptance of the arrangement. Lazansky, P. J., Hagarty, Adel and Taylor, JJ., concur; Davis, J., dissents and votes to affirm with the following memorandum: There are sufficient facts set up in the counterclaim showing that it was agreed that the contract with the corporation would continue under the new management. This agreement was made with the men who were to control the corporation and who presumably became its officers. The corporation thereafter operated under the contract, acted as sole distributor and paid cash for the beer delivered to it. These acts constitute an acceptance on its part of a contract made for its benefit. The obligation became mutual. (Wood v. Duff-Gordon, 222 N. Y. 88.)