Brick v. Cohn-Hall-Marx Co.
| Decision Date | 07 December 1937 |
| Citation | 11 N.E.2d 902,276 N.Y. 259 |
| Parties | BRICK et al. v. COHN-HALL-MARX CO. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Action by George H. Brick and another, doing business under the firm name and style of Brick & Ballerstein, against the Cohn-Hall-Marx Company. From a judgment of the Appellate Division (251 App.Div. 300, 296 N.Y.S. 342), reversing on the law a judgment of the Special Term dismissing the complaint, defendant appeals.
Order of the Appellate Division reversed, and judgment of the Special Term affirmed. Appeal from Supreme Court, Appellate Division, First Department.
Milton C. Weisman and Melvin A. Albert, both of New York City, for appellant.
Eugene L. Bondy and Norman Winer, both of New York City, for respondents.
On the 13th of May, 1924, the plaintiffs and the defendant entered into a contract regarding royalties to be paid upon the use of a certain package for marketing bolts of cloth. Both parties claimed patent rights, and the agreement was made to permit the use of the package pending patent litigation. The agreement provided for payment as follows:
* * *
‘The first party further agrees to exhibit to the second party all contracts made by the first party for the use by others of said package and all licenses which shall be granted by it, and shall also render verified statements each three months showing the sums of money received by it for said manufacture and/or use of said package during said period, and shall also at the time of making payments as hereinbefore provided pay to the second party the sums due to the second party by reason of any and all licensing agreements relating to said package.
On December 28, 1925, this agreement was modified in an unimportant detail.
The plaintiffs in this action sue the defendant for moneys due on this contract since April of 1929, claiming that the defendant kept false books, rendered false statements, and made sales for which it did not account. The complaint alleges that the plaintiffs became entitled to receive under the contracts aforesaid, in addition to royalties actually received, royalties on at least 232,402 packages, to wit, the sum of at least $17,430.15.
As this action was not commenced within the six-year statute of limitations, the plaintiffs have brought action as in fraud, alleging that the books of the defendant contained false and fraudulent entries and that the defendant falsely and fraudulently represented to the plaintiffs that it had fairly and justly paid all that was due under the contract and had accounted for all the sales that were made, and that the plaintiffs did not discover the falsity of these facts until February of 1936. The claim is that the statute of limitations does not begin to run upon this claim of fraud until the fraud has been discovered. Section 48 of the Civil Practice Act reads:
‘The...
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...Elec. Co. v. Brenner, 41 N.Y.2d 291, 293-94, 360 N.E.2d 1091, 1093, 392 N.Y.S.2d 409, 410-11 (1977); Brick v. Cohn-Hall-Marx Co., 276 N.Y. 259, 264, 11 N.E.2d 902, 904 (1937); Corash v. Texas Co., 264 A.D. 292, 295, 35 N.Y.S.2d 334, 338 (1st Dept.1942). However, recently, the New York Court......
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von Bulow By Auersperg v. Von Bulow, 86 Civ. 7558 (JMW).
...of limitations as a defense, a long line of cases, beginning with the New York Court of Appeals decision in Brick v. Cohn-Hall-Marx Co., 276 N.Y. 259, 11 N.E.2d 902 (1937), mandates that courts carefully review the underlying basis of any fraud claim to ensure that it truly is one for "When......
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...Forte v. Garden City Hotel, Inc., 106 A.D.2d 271, 483 N.Y.S.2d 216, 218 (1st Dep't 1984). See also Brick v. Cohn-Hall-Marx Co., 276 N.Y. 259, 263-64, 11 N.E.2d 902 (1937); Gould v. Community Health Plan of Suffolk, Inc., 99 A.D.2d 479, 470 N.Y.S.2d 415, 417 (2nd Dep't 1984); L. Fatato v. De......
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