Laufer v. National Container Corp.

• Decision Date: 17 December 1963
• Citation: 245 N.Y.S.2d 953,20 A.D.2d 533
• Parties: NATIONAL CONTAINER CORPORATION, Plaintiff-Appellant, v. Arthur LAUFER, d/b/a Roslyn Paper Products Co., Defendant-Respondent. Arthur LAUFER, individually and doing business as Roslyn Paper Products Co., Plaintiff-Respondent, v. NATIONAL CONTAINER CORPORATION, Defendant-Appellant. NATIONAL CONTAINER CORPORATION, Plaintiff-Appellant-Respondent, v. Arthur LAUFER, d/b/a Roslyn Paper Products Co., Defendant-Respondent-Appellant. Arthur LAUFER, individually and doing business as Roslyn Paper Products Co., Plaintiff-Respondent-Appellant, v. NATIONAL CONTAINER CORPORATION, Defendant-Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 953

245 N.Y.S.2d 953

20 A.D.2d 533

NATIONAL CONTAINER CORPORATION, Plaintiff-Appellant, v. Arthur LAUFER, d/b/a Roslyn Paper Products Co.,

Defendant-Respondent.

Arthur LAUFER, individually and doing business as Roslyn

Paper Products Co., Plaintiff-Respondent, v. NATIONAL CONTAINER CORPORATION, Defendant-Appellant.

NATIONAL CONTAINER CORPORATION, Plaintiff-Appellant-Respondent, v. Arthur LAUFER, d/b/a Roslyn Paper Products Co.,

Defendant-Respondent-Appellant.

Arthur LAUFER, individually and doing business as Roslyn

Paper Products Co., Plaintiff-Respondent-Appellant, v. NATIONAL CONTAINER CORPORATION, Defendant-Appellant-Respondent.

Supreme Court of New York, Appellate Division,

First Department.

Dec. 17, 1963.

A. I. Roth, for plaintiff-appellant.

A. J. Ballen, New York City, for defendant-respondent-appellant.

Order, entered on July 19, 1963, reversed on the facts and the law, without costs, and judgment directed for plaintiff for goods sold and delivered as demanded in the complaint. Order, entered on July 19, 1963, reversed on the facts and on the law, without costs, and judgment directed dismissing the complaint, without costs, in the action for damages. Plaintiff (National Container Corp. herein National) brought an action for goods sold and delivered. Thereupon defendant (Laufer) brought an action for breach of an agreement for a distributorship. The actions were consolidated for the purposes of trial only. Plaintiff National moved for summary judgment. Defendant Laufer did not contest the merits of plaintiff's claim but relied on its own claim as being a counterclaim in excess of plaintiff's claim. The motion was denied. Then for a period of some five years no further step was taken in either action. By separate motions each side moves to dismiss the other's claim and plaintiff moves for judgment on its claim. While there is little excuse for National's inaction during the period, the fact remains that it has an uncontested claim and is opposed by a claim that Laufer has not seen fit to prosecute. Under the circumstances its right to have that claim dismissed is indisputable and it should not be penalized by its inaction in waiting for its opponent to proceed. All concur except STEVENS and EAGER, JJ., who dissent in the following memo by EAGER, J.

EAGER, Justice (dissenting):

We would affirm the orders appealed from. In viewing the position of the plaintiff National Container Corporation in the most favorable light, it was equally chargeable with the defendant Laufer with the laches in the prosecution of the consolidated action. Special Term held that 'Both parties are equally guilty of laches of diligence in the prosecution of their claims.' Under the circumstances, the determination here, without a proper consideration of the merits, which on the one hand grants judgment to said plaintiff for goods sold and delivered and on the other hand summarily dismisses defendant's claim for damages for breach of contract, is manifestly unfair. For the purpose of sustaining the orders appealed from, we...