S. F. Zaloom & Co. v. Craig

149 N.Y.S. 911

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 19, 1914
• Status: Published

Opinion

BIJUR, J.

This action is brought to compel defendant to pay plaintiff the amount which plaintiff paid to the state on a compromise of a claim that plaintiff was selling as coffee an imitation not properly, labeled, in violation of the Agricultural Law (Consol. Laws, c. 1).

There is no doubt that plaintiff duly notified defendant of the action brought against it by the state; but, on the other hand, there is no contradiction of the testimony of defendant’s counsel that he in return notified plaintiff’s counsel that defendant had compromised or was compromising this action, with .others, and that, if the state should proceed further with the action against plaintiff, plaintiff’s counsel should notify him, in which case he would take care of the action, but plaintiff’s counsel did nothing of the kind. The record also fails to disclose any facts upon which to predicate either a warranty or a representation by defendant that the article of which complaint was made was sold by defendant to plaintiff as coffee, either pure or adulterated. The alleged copy of a label said to have been affixed to the packages by defendant, as recited in the complaint, is unintelligible.

Judgment reversed, and a new trial granted, with costs to appellant to abide the event. All concur.