Ruffer v. Waterbury Co.

203 A.D. 611, 197 N.Y.S. 594, 1922 N.Y. App. Div. LEXIS 7257

Opinions

Smith, J.:

The decision in this case must follow the decision in the case of Central Trust & Savings Co. v. Waterbury Co. (203 App. Div. 602). There are some distinguishing facts in the case, but none of them, I think, alters the principle of law which must be applied. The contracts in this case were made under the Dockendorff system, as amended in 1911. It is the same contract practically, therefore, as was passed upon in the case of Presser v. Central Trust & Savings Co. (189 App. Div. 721; affd., 232 N. Y. 573). In this case no note was given by the defendant to the plaintiff.

I am unable to see, however, in view of the elaborate papers signed by the parties, that the absence of the note is any substantial reason for reaching a conclusion different from that reached in the Central Trust & Savings Co. case. Also, it was provided that Dockendorff should remit to London, the home of the plaintiff, by drafts on London through J. P. Morgan & Co. This has no significance as it simply provides for a method of transmission of funds to the plaintiff living abroad.

If the conclusion reached in the Central Trust & Savings Co: case be justified, the facts appearing in this record lead to the same result.

The judgment should, therefore, be reversed on the law and facts, with costs, and judgment be directed for the plaintiffs in accordance with plaintiffs’ complaint, with costs.

Clarke, P. J., concurs; Greenbaum, J., concurs in result; Merrell and Finch, JJ., dissent.