Rives v. Zeiss-Stiftung

259 A.D. 1051, 21 N.Y.S.2d 203, 1940 N.Y. App. Div. LEXIS 7932

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 24, 1940
• Status: Published

Opinion

Appeals by defendant in an action on certain negotiable bonds (a) from an order denying its motion on the original papers for an order vacating a warrant of attachment, and (b) from an order denying a similar motion made on affidavits. Orders affirmed, with one allowance of twenty dollars costs and disbursements to respondent. While much of plaintiff’s evidence was necessarily submitted in the form of hearsay, the sources thereof were fully and properly disclosed (Gumbes v. Hicks, 116 App. Div. 120, 121; afíd., 190 N. Y. 532; Hart v. Page Manufacturing Co., 187 App. Div. 296, 297), and the evidence negatived the idea that plaintiff must ultimately fail in the action. (Jones v. Hygienic Soap Granulator Co., 110 App. Div. 331, 334-335; Bard-Parher Co., Inc., v. Dictograph Products Co., Inc., 258 id. 638, 640.) The affidavits and exhibits submitted by defendant on the second motion did not overcome or weaken the case set out by plaintiff. Defendant’s breach of the sinking fund provision in the bonds owned by plaintiff accelerated the time for payment and entitled plaintiff to sue for the amount of the bonds at once. (Hall v. Nassau Consumers Ice Co., 260 N. Y. 417, 419.) Lazansky, P. J., Hagarty, Johnston, Taylor and Close, JJ., concur.