Reports of Cases Heard and Determined in the Appellate Division of the Supreme Court of the State of New York (Volume 130) (Paperback)

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1909. Excerpt: ... App. Div. Third Department, January, 1909. with the plaintiff's principal instead of with the plaintiff, asks leave to amend by alleging that the principal's right of action had been assigned to the plaintiff, the amendment should be conditioned on the payment of costs and disbursements made since the original complaint was served, together with costs of motion. Chester and Sewell, JJ., dissented in part. Appeal by the defendant, Olin W. Wood, from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Delaware on the 10th day of September, 1908, allowing the plaintiffs, after two unsuccessful trials of the action, to serve an amended complaint upon payment of costs. Wagner & Fisher, for the appellant. 6. W. Youmans and F. W. Youmans, for the respondents. Kellogg, J.: The complaint alleged a cause of action for the purchase price of a dynamo sold by the plaintiffs to the defendant, and as a second cause of action an indebtedness by the defendant to the plaintiffs for money paid and expended for the defendant at his request and which he agreed to pay. The answer was a general denial, and an allegation, in substance, that the dynamo was purchased by the defendant of Fairbanks, Morse & Co., was not according to contract, and that there was a failure of consideration. The action was tried in February, 1908, and the plaintiffs were nonsuited as to the first cause of action and the jury disagreed as to the second cause of action. It appeared upon the trial that there was a written contract for the sale of the dynamo between the defendant and Fairbanks, Morse & Co., and some days before the Trial Term the defendant served upon the plaintiffs a notice requiring its production. The plaintiffs contende...