Shoreco International, Inc. v. Ivy Hill Communications Corp.

45 A.D.2d 525, 360 N.Y.S.2d 18, 1974 N.Y. App. Div. LEXIS 3840

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 24, 1974
• Status: Published

Opinions

Steueb, J.

The defendant Ivy Hill Communications Corp. (Ivy Hill) bought a lithographic machine from the defendant Winkler & Duennebier (Winkler), a German manufacturer. The complaint alleges that the plaintiff Shoreco International, Inc. (Shoreco) designed the machine and that it had an agreement with Winkler that machines manufactured from this design would be sold only to the plaintiff. Shoreco instituted this action against Ivy Hill and Winkler and certain other defendants associated with them. Shoreco also sued Transcontinental Automatic Machinery Limited (Transcontinental), the sales agent for Winkler in the United States. Ivy Hill cross-claimed against Transcontinental. Transcontinental moved to dismiss the cross complaint, and it is from the denial of that motion that this appeal is taken.

In .substance the cross complaint alleges Transcontinental’s agency for Winkler. It then alleges -that Transcontinental advised Ivy Hill that Winkler made machines and invited Ivy Hill to a trade show being conducted by Winkler in Duesseldorf, Germany; and that Ivy Hill atténded the show and purchased two machines. The balance of the cross complaint sets out how Ivy Hill will be damaged in the event that Shoreco prevails against it.

The difficulty with the cross complaint is that it is nowhere alleged that Transcontinental did anything to bring about the sale of the machines that Ivy Hill bought other than to notify Ivy Hill that Winkler was a manufacturer of packaging machinery and would have machines on display at a trade show. There is no claim that all of Winkler’s machines were subject to the restriction claimed by Shoreco, nor that Transcontinental had any knowledge that Ivy Hill was purchasing a machine so restricted. The theory of the cross complaint must therefore be that Transcontinental was under a duty to advise any prospective purchaser of any Winkler machine that there were some Winkler models the sale of which was restricted. Such a duty might well arise if the agent engaged in the sale of a particular machine. He would then have the same duty as his principal. But here there is nothing alleged that shows that the sales agent participated in the sale of the machines or knew what machine the purchaser was buying. Short of that, no duty of advising the prospective purchaser can be said to exist.

It may be that these deficiencies can be supplied. For that reason the denial of the motion to dismiss the cross complaint should be reversed, on the law, with costs and disbursements, and the motion granted, with leave to serve an amended cross complaint if so advised.