Tell v. General Meat Corp.

Appellate Division of the Supreme Court of New York

Tell v. General Meat Corp.

18 A.D.2d 1061, 239 N.Y.S.2d 392, 1963 N.Y. App. Div. LEXIS 3916

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 18, 1963

StatusPublished

This text of 18 A.D.2d 1061 (Tell v. General Meat Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Tell v. General Meat Corp., 18 A.D.2d 1061, 239 N.Y.S.2d 392, 1963 N.Y. App. Div. LEXIS 3916 (N.Y. Ct. App. 1963).

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Opinion

Determination of Appellate Term affirming judgment of Municipal Court dismissing plaintiffs’ complaint, unanimously reversed on the law and the facts, and judgment directed for plaintiffs against the defendant for $2,758.84, with interest and with costs. This was a nonjury trial and this court, on the appeal duly allowed and taken to it, should render the judgment which, on the law and the facts, the trial court should have granted. (Civ. Prac. Act, § 584; 9 Carmody-Wait, New York Practice, § 204, p. 627.) On the trial it was established that the account, as sued for, for goods sold and delivered, was owing by defendant to plaintiffs’ assignor, Ever Best Provisions, Inc., a corporation. Defendant, however, claimed the right to a setoff of an indebtedness, exceeding the amount of the account, alleged to be owing to it by the assignor Ever Best. Such indebtedness had been originally incurred by another corporation and guaranteed by an individual, who was indirectly a stockholder and beneficially interested therein and who was also a stockholder in Ever Best. The corporations were in law independent entities and the evidence is insufficient to sustain a finding that they were mere instrumentalities of the afore-mentioned individual and his brother or that, for other reasons, there should be a disregarding of the corporate entities. (See 11 N. Y. Jur., Corporations, §§ 9-12, and cases cited; also Jenkins v. Moyse, 254 N. Y. 319, 324; City Bank Farmers Trust Co. v. Macfadden, 13 A D 2d 395, 402, 403, affd. 12 N Y 2d 1035.) The record here will not support a finding that plaintiffs’ assignor was chargeable with liability for the indebtedness which was claimed as a setoff. Settle order on notice. Concur — Breitel, J. P., Rabin, Eager, Steuer and Bastow, JJ.

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Determination of Appellate Term affirming judgment of Municipal Court dismissing plaintiffs’ complaint, unanimously reversed on the law and the facts, and judgment directed for plaintiffs against the defendant for $2,758.84, with interest and with costs. This was a nonjury trial and this court, on the appeal duly allowed and taken to it, should render the judgment which, on the law and the facts, the trial court should have granted. (Civ. Prac. Act, § 584; 9 Carmody-Wait, New York Practice, § 204, p. 627.) On the trial it was established that the account, as sued for, for goods sold and delivered, was owing by defendant to plaintiffs’ assignor, Ever Best Provisions, Inc., a corporation. Defendant, however, claimed the right to a setoff of an indebtedness, exceeding the amount of the account, alleged to be owing to it by the assignor Ever Best. Such indebtedness had been originally incurred by another corporation and guaranteed by an individual, who was indirectly a stockholder and beneficially interested therein and who was also a stockholder in Ever Best. The corporations were in law independent entities and the evidence is insufficient to sustain a finding that they were mere instrumentalities of the afore-mentioned individual and his brother or that, for other reasons, there should be a disregarding of the corporate entities. (See 11 N. Y. Jur., Corporations, §§ 9-12, and cases cited; also Jenkins v. Moyse, 254 N. Y. 319, 324; City Bank Farmers Trust Co. v. Macfadden, 13 A D 2d 395, 402, 403, affd. 12 N Y 2d 1035.) The record here will not support a finding that plaintiffs’ assignor was chargeable with liability for the indebtedness which was claimed as a setoff. Settle order on notice. Concur — Breitel, J. P., Rabin, Eager, Steuer and Bastow, JJ.

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Bluebook (online)

18 A.D.2d 1061, 239 N.Y.S.2d 392, 1963 N.Y. App. Div. LEXIS 3916, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tell-v-general-meat-corp-nyappdiv-1963.

Opinion

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