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(182 N.Y.S.)

Casein Co. of America, 206 N. Y. 506, 515, 100 N. E. 488, Ann. Cas. 1914B, 377.

[3] As regards the point made by the respondent, that the oral contract was merged in the writing, it is enough to say that, even if the memorandum is to control, the provision which makes the lumber subject to the defendant's inspection does not permit the defendant to substitute a government inspection. But in that connection the plaintiff contends that the terms of the contract had been agreed upon, that he had entered upon the performance thereof, and that the memorandum which was afterward mailed to him was a mere declaration by the defendant of the terms of the contract, and that the contract itself was the oral agreement theretofore made; and it is further suggested that, even if the memorandum is to be given full effect, it being silent upon the question as to the particular employé or representative of the defendant who was to make the inspection, that fact could be shown by oral evidence, and was a mere amplification of the writing itself.

I think the judgment should be reversed, and a new trial granted, with costs to the appellant to abide the event.

(191 App. Div. 715)

ROSENWASSER v. ROSENWASSER.

(Supreme Court, Appellate Division, Second Department. May 7, 1920.) Divorce 85-Defendant's affidavit for examination of plaintiff before trial held insufficient.

In wife's divorce suit on ground of adultery, husband was not entitled to an order for examination of wife before trial as to whether the adulteries charged were with her connivance or procurement, on affidavit not alleging that any collusion or connivance existed, or specifying facts and circumstances under court rule 82, but merely stating that, if such acts were with the connivance of the wife, she "is the one person of all who really knows whether they were so committed, if committed at all"; such affidavit merely laying bare a conjectural defense, based wholly on the things hoped for by defendant.

Appeal from Special Term, Kings County.

Action by Elizabeth M. Rosenwasser against Philip Rosenwasser. From an order denying plaintiff's motion to vacate an ex parte order for her examination before trial (110 Misc. Rep. 38, 179 N. Y. Supp. 617), she appeals. Order reversed, and plaintiff's motion granted.

Plaintiff appeals from an order of the Special Term, entered January 15, 1920, in the office of the clerk of Kings county, which denied plaintiff's motion to vacate an ex parte order for her examination before trial. The wife sues for divorce on the ground of adultery. Her complaint specified (article XII) such acts with a woman unknown by name; also (XIII) with one named. The defendant set up, only on information and belief, that such acts, if committed, were with plaintiff's consent, connivance, privity, and procurement. This examination of the wife was limited to the question whether the adulteries charged in articles XII and XIII were with her connivance or procure ment. The wife's motion to vacate was denied (110 Misc. Rep. 38, 179 N. Y. Supp. 617), and she appeals.

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Argued before JENKS, P. J., and MILLS, PUTNAM, BLACKMAR, and KELLY, JJ.

Henry M. Dater, of Brooklyn (Jay S. Jones and Edward J. Fanning, both of Brooklyn, on the brief), for appellant.

Sidney J. Loeb, of New York City, for respondent.

PER CURIAM. The husband seeks this examination before trial merely to see if he can bring out some basis for the defense he has raised. His ground is a statement that, if such acts were with the connivance of the plaintiff, she "is the one person of all who really knows whether they were so committed, if committed at all." His affidavit thus alludes to the governess:

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"She was in the plaintiff's company daily, and in fact for a few days was in the mountains with the plaintiff. What the conversations were at those times, what arrangements were made between them, whether to be a governess, or was really a detective to lure your deponent into a compromising situation, are all known to this plaintiff."

was

Defendant nowhere alleges that any collusion or connivance in fact existed. Instead of specifying facts and circumstances under rule 82, the affidavit lays bare a conjectural defense based wholly on things. hoped for by defendant.

The order is therefore reversed, with $10 costs and disbursements, and plaintiff's motion granted, with $10 costs.

GRUAS et al. v. FORTOUL FILM CORPORATION et al.
(Supreme Court, Special Term, New York County. May 17, 1920.)

1. Fraud 36-That defendants entitled to commission and reimbursement held not a defense.

In purchaser's action against sellers for fraud in delivering inferior motion picture films, that defendants were plaintiff's agents, and were entitled to commissions and reimbursement of moneys expended, did not constitute a defense.

2. Set-off and counterclaim 34 (1)-Claims in contract cannot be set up in action for tort unless connected with subject of action.

In a purchaser's action against sellers for fraud in delivering inferior motion picture films, claims by the sellers for commissions and reimbursement for moneys expended could not be set up as counterclaims, in the absence of allegations that it arose out of the transaction alleged in the complaint, or that it was connected with the subject of the action. 3. Set-off and counterclaim 42-Counterclaim in favor of one defendant

cannot be set off in action against two defendants.

In buyer's action against sellers for fraud in sale of inferior motion picture films, wherein defendants claimed commissions as set forth in the counterclaim, based on moneys expended, such claim was not available, where it was made in behalf of one defendant alone, and the action was brought by plaintiff against both defendants.

Suit by Miguel de Miguel y Gruas and another against the Fortoul Film Corporation and another. On motion by plaintiffs for order

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(182 N.Y.S.)

sustaining their demurrer to the separate defense and counterclaims set forth in the second amended answer. Motion granted.

Seligsberg, Lewis & Strouse, of New York City, for the motion.
Abraham H. Goodman, of New York City, opposed.

GIEGERICH, J. The plaintiffs move for an order sustaining their demurrer to the separate and distinct defenses and the counterclaims set forth in the second amended answer. The complaint alleges fraud on the part of the defendants in delivering an invoice, falsely representing that the goods shipped, consisting of motion picture films, were of a certain character, whereas they were, in fact, of a very inferior character. The defendant corporation sets up two separate defenses, which are also pleaded as counterclaims.

[1] The plaintiffs have demurred to the separate defenses upon the ground that they are insufficient in law, and to the counterclaims upon the ground that they are not of the character specified in section 501 of the Code of Civil Procedure, in that they do not constitute causes of action arising out of the transaction set forth in the complaint and are not connected with the subject of the transaction. The first socalled defense and counterclaim alleges that during a period which embraces the date of the alleged fraud the defendant corporation was employed as the plaintiffs' purchasing agent and so acted and became entitled to commissions which have been demanded, but payment has been refused. The second so-called defense and counterclaim alleges that at a time a few months prior to the date of the alleged fraud the defendant corporation, at the request of the plaintiffs and as their agent, entered into a certain contract for the purchase of various films for the plaintiffs, and laid out and expended on behalf of the plaintiffs the sum of $2,500 upon that contract, which amount the defendant corporation has demanded, but which has not been paid. It is plain, without argument, that the so-called defenses are not in fact defenses.

[2] Neither do I think that they are of such a character as the statute permits to be set up as counterclaims. Where a cause of action on contract is sought to be set up as a counterclaim to a cause of action for tort, it is well established that the counterclaim must contain allegations showing that it arises out of the transaction alleged in the complaint or that it was connected with the subject of the action. Hall v. Werney, 18 App. Div. 565, 46 N. Y. Supp. 33; Smith v. Rensselaerville Creamery Co., 131 App. Div. 387, 115 N. Y. Supp. 273; Fletcher v. MacGinniss, 168 App. Div. 225, 153 N. Y. Supp. 581. In the present case there are no allegations which meet this requirement. The argument is attempted on behalf of the defendants that it does. appear in the allegations of the first counterclaim that the merchandise. shipped, and upon which the plaintiffs predicate their cause of action for fraud, is part of the item on which the defendant corporation claims commissions as set forth in the counterclaim. I do not think that the counterclaim warrants such a construction, however. At most it would only show a connection between an indefinite and maybe a

very small portion of the defendant corporation's counterclaim and the plaintiffs' cause of action.

[3] But even an inference to that extent is not permissible, in view of the fact that the plaintiffs allege a cause of action against both defendants, while both counterclaims are set up on behalf of the defendant corporation alone. With respect to the second counterclaim, there is still less ground for arguing that an inference may be drawn of some connection between the counterclaim and the plaintiffs' cause of action.

The motion should be granted, with $10 costs. Settle order on notice.

(111 Misc. Rep. 553)

SEAVER v. LINDSAY LIGHT CO.

(Supreme Court, Trial Term, Kings County. May 3, 1920.)

1. Sales 418 (2)-Damages for nondelivery measured by value at place of delivery.

Buyer's damages for nonperformance are measured by the value of the goods at the place of delivery, and not where the contract was made.

2. Carriers 94 (4)-Damages for failure to transport measured by value at place of destination.

Where a party agrees to carry goods to a designated place, the damages arising from his failure to perform are measured by the value of the goods at place of destination.

3. Sales

79-Place of delivery a matter of intention.

The place of delivery under a contract of sale is a question to be determined according to the intention of the parties.

4. Sales 161-Place of delivery where goods are shipped by carrier.

Ordinarily, in the absence of special facts, a contract to sell goods is completed when the seller delivers them to a carrier to be transported to the buyer, and such is delivery to the buyer, even though the goods are not then paid for; but such rule does not apply, if the seller agrees to deliver the goods or makes some other agreement showing a different intention.

5. Sales 161-Provision f. o. b. ordinarily designates place of delivery.

Under the common provision f. o. b. place of shipment, the seller's obligation is complete when he ships the goods, and the title to them passes then, and he is not obligated to pay the freight; but, if the agreement is f. o. b. place of destination, the seller must pay the freight, and may be deemed to have retained the title to the goods until their arrival at the point of destination; but, if there is anything to show that the intention of the parties was different, that will control.

6. Sales

77 (2)—The terms "c. f. i." and "c. i. f." defined.

The provision "c. i. f." in a contract of sale of goods is an expression indicating that the price fixed covers the cost of goods, insurance, and freight on it to place of destination, and the same meaning is given to the initials "c. f. i.," and under such a contract the seller must ship the goods, arrange the contract of affreightment, and pay its cost, or allow it from the purchase price, and procure insurance for the buyer's benefit for the safe arrival of the goods, and pay therefor.

7. Sales 161-Seller of goods c. i. f. fulfills contract by paying insurance, freight, etc., and delivery is complete.

When a seller, under a contract of sale of goods containing a provision c. f. i., has shipped the goods, arranged contract of affreightment to place of destination, paid its cost, or allowed it from the purchase price, procured For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(182 N.Y.S.)

insurance for the buyer's benefit for the safe arrival of the goods, and paid therefor, and forwarded the papers to the buyer, he has fulfilled his contract, and delivery is complete, and there is no obligation by the seller to deliver the goods at the place of destination, in the absence of an agreement showing a different intention.

. 8. Sales 197—Statute as to when title passes not applicable to contract executed and to be performed elsewhere than in state.

Personal Property Law, § 100, rule 5, relating to when property passes in goods, is not applicable to contract of sale of goods neither executed nor to be performed within the state of New York.

9. Sales 418 (1)—Measure of damages for failure to deliver same, whether or not shipment is made.

The same rule of damages applies in an action by a buyer against a seller for damages for nonperformance, where there is no shipment made. as where a shipment is made that does not conform to the contract.

Action by Fred O. Seaver against the Lindsay Light Company. Judgment for plaintiff.

Steele, DeFriese & Steele, of New York City (George E. Miner, of New York City, of counsel), for plaintiff.

Isaac Hyman, of New York City, for defendant.

CROPSEY, J. This action was tried at Trial Term, without a jury. There is little or no dispute on the facts. A broker in London. communicated with the defendant in Chicago, asking if it had thorium for sale. The defendant replied, referring the broker to its brokers in London, who would quote prices. Thereafter there was various correspondence between the two brokers, and finally the defendant's brokers submitted an offer from the defendant. This the broker who had first communicated with the defendant accepted in a cable sent to the defendant at Chicago, and the defendant's confirmation of this. acceptance was contained in a cablegram sent to its London agents and transmitted by them to the first broker. The acceptance of the final offer showed that the goods were being purchased for a corporation in Holland. The thorium was to be delivered in six monthly installments at the price of $4 a pound cash in advance, c. i. f. Rotterdam. Later, by mutual consent, the contract was changed to c. i. f. London Dock. The defendant shipped some of the monthly deliveries, but failed to ship the balance. This is an action to recover the damages sustained by the buyer; the plaintiff being its assignee.

[1, 2] The plaintiff claims the contract was made in London. The defendant claims it was made in Chicago. It would seem that the latter contention was correct, but the decision of this disputed question is really immaterial. In an action between buyer and seller for damages for nonperformance of a contract of sale, the place of delivery is the important factor. The damages are measured by the value of the goods at the place of delivery, and not at the place where the contract was made. Saxe v. Penokee Lumber Co., 159 N. Y. 371, 54 N. E. 14; Oswego Falls P. & P. Co. v. Stecher Lith. Co., 215 N. Y. 98, 106, 107, 109 N. E. 92, L. R. A. 1916B, 1257. This rule must not be confused with the rule applicable where the breach

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