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(182 N.Y.S.) (191 App. Div. 719)

ESTES v. CURTISS AEROPLANE & MOTOR CORPORATION. (Supreme Court, Appellate Division, Fourth Department. May 5, 1920.) 1. Sales On 72 (5)—Buyer cannot require inspection contrary to contract.

Where the parties agreed that lumber sold by plaintiff should not be inspected by government inspectors, and after plaintiff entered on per: formance of the contract defendant insisted on governmental inspection, plaintiff was not bound to proceed, and defendant cannot defeat an action for damages on the ground that, if the lunber equaled specifications,

it was immaterial who inspected it. 2. Sales Ew98, 371-Where buyer violated contract by insisting on inspec

tion, seller could rescind, and recover damages, without manufacturing goods; "anticipatory breach."

Defendant buyer's insisting on inspection contrary to the contract was an "anticipatory breach,” which, under Personal Property Law, $ 146, entitled plaintiff seller to rescind the sale contract and recover damages

for its breach, without first manufacturing and tendering the goods. 3. Sales Ow72 (5)—Provision for inspection does not require governmental

inspection.

A provision, in a written memorandum confirming a contract to purchase lumber, that inspection should be by the buyer, does not warrant

the buyer in demanding governmental inspection. Appeal from Trial Term, Allegheny County.

Action by George L. Estes against the Curtiss Aeroplane & Motor Corporation. From a judgment for defendant, dismissing the complaint, plaintiff appeals. Reversed, and new trial granted.

Argued before KRUSE, P. J., and LAMBERT, DE ANGELIS, HUBBS, and CLARK, JJ.

Merchant, Waite & Waite, of Binghamton (Lawrence O. Waite, of Binghamton, of counsel), for appellant.

Kent, Cummings & Means, of Buffalo (Ralph C. Taylor, of Buffalo, of counsel), for respondent.

KRUSE, P. J. The plaintiff manufactures lumber. The defendant was constructing aeroplanes for the government and needed lumber. The plaintiff had manufactured and furnished lumber to the defendant for this purpose before entering into the contract in suit. The inspection had been made by a government inspector, which the plaintiff regarded as rigid, unreasonable, and unjust, resulting in serious financial loss to him, as he claimed. The defendant desired more lumber, but the plaintiff complained of the inspection, and refused to furnish any more subject to government inspection. The defendant's representative assured the plaintiff that no such inspection would be required, and stated, in substance, that the inspection would be liberal, and that a certain inspector, naming him, in defendant's employ, would do the inspection. Plaintiff said he was satisfied, and would accept this man's inspection. Thereupon they entered into a contract by which, at a certain price, plaintiff agreed to manufacture and deliver a certain quantity of ash lumber, of special cut and sizes, at least 25 per cent. of which should be suitable for aeroplanes.

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The plaintiff at once started the work of manufacturing the lumber. After plaintiff had entered upon the work, a confirmation in writing was sent by the defendant to the plaintiff, stating the quantity, price, and kind of lumber to be manufactured, and adding the words "subject to our inspection,” but did not specifically name the inspector who .had been agreed upon as inspector. About two weeks thereafter, while the plaintiff was engaged in the work of manufacturing the lumber, but before any had been inspected or delivered, the defendant wrote to the plaintiff to note that the white ash would be subject to inspection by a government representative at the point of shipment. Within a few days thereafter the plaintiff talked over the telephone with defendant's representative, calling his attention to this letter and to the fact that the irspection was different from what had been agreed upon, and thereafter refused to proceed with the performance of the contract, and brought this action to recover damages for a breach of the contract, claiming that the defendant had repudiated the same by insisting upon government inspection.

At the close of the plaintiff's case the defendant moved for a nonsuit, which was granted. The nonsuit seems to have been granted upon the ground that the plaintiff had failed to establish any damages by the breach; it not appearing that the lumber would not have passed government inspection, or that such inspection would result in less than 25 per cent. being accepted for aeroplane stock, the trial judge stating in that connection that he was unable to see any possible injury to the plaintiff, if at least 25 per cent. of the output was suitable for aeroplane stock.

[1] I am of the opinion that the plaintiff made out a case. If the parties agreed upon a method of inspection, and the person to do the inspecting, that agreement was binding upon both parties, and the plaintiff was not required to proceed with the performance of the contract in the face of the claim which the defendant made that the lumber was to be subject to government inspection. That was the very thing against which the plaintiff contracted, and I think it is no answer to say that, if the lumber in fact came up to the requirements, it was immaterial who inspected it. In Dustan v. McAndrew, 44 N. Y. 75, which involved the sale of hops to be inspected by one Brown, or some other inspector satisfactory to both parties, it was held that neither party had the right to demand another inspector, unless Brown neglected or refused to inspect. The question was fully discussed there, and no further discussion is needed here. See, also, 35 Cyc. 227; Camden Iron Works v. City of New York, 101 App. Div. 272, 93 N. Y. Supp. 754.

[2] It was not necessary that the plaintiff should manufacture and tender the lumber to the defendant in order to maintain the action. When the defendant repudiated a material provision of the contract, there was an anticipatory breach, and the plaintiff could rescind the contract and recover his damages for a breach thereof. Personal Property Law (Consol. Laws, c. 41) § 146; Hadfield v. Colter, 188 App. Div. 563, 177 N. Y. Supp. 382; Rubber Trading Co. v. Manhattan Rubber Mfg. Co., 221 N. Y, 120, 116 N. E. 789; Wester v.

(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 w85—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. Om For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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:

"She was 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 w 36-That defendants entitled to commission and reimbursement

held not a defense.

In purchaser's action against seilers 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 Ow34 (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 ww42_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 conimissions 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

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