Universal Major Elec. Appliances, Inc. v. Rudisco, Inc.

• Decision Date: 24 January 1957
• Citation: 3 A.D.2d 687,159 N.Y.S.2d 250
• Parties: UNIVERSAL MAJOR ELECTRIC APPLIANCES, Inc., Respondent, v. RUDISCO, Inc., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 250

159 N.Y.S.2d 250

3 A.D.2d 687

UNIVERSAL MAJOR ELECTRIC APPLIANCES, Inc., Respondent, v. RUDISCO, Inc., Appellant.

Supreme Court, Appellate Division, Third Department.

Jan. 24, 1957.

Reargument and Appeal Denied March 14, 1957. See 161 N.Y.S.2d 580.

Harry A. Allan, Albany, for appellant.

Morton M. Z. Lynn, Albany, for respondent.

Before FOSTER, P. J., and BERGAN, COON, HALPERN and GIBSON, JJ.

MEMORANDUM DECISION.

Appeal from an order of the Supreme Court, Special Term, Albany County granting summary judgment and from the judgment entered on said order.

The action is for goods sold and delivered, allegedly by three corporations. Plaintiff is alleged to be their successor and the owner of their assets 'by merger or by assignment'. The sales were made, however, pursuant to a 'distributor sales agreement' between defendant, as distributor, and Refrigeration Sales Company. The latter entity (whether corporate or otherwise does not appear) is not mentioned in the complaint and is referred to but once in plaintiff's moving affidavit, in which it is said to be the 'sales organization' for still another corporation, which is not mentioned in the complaint but in the affidavit is said also to have merged in, plaintiff corporation. The answer controverts, by denials of knowledge or information sufficient to form a belief, the allegations that plaintiff is the successor of the three corporations named in the complaint and the owner of their assets 'by merger or by assignment'. No documentary proof or other evidentiary fact supports the allegation of the transfer of the interest and claim of Refrigeration Sales Company to plaintiff by any form of merger. The allegation of a transfer in an alternative manner (i. e., 'or by assignment') is completely without factual support. Defendant's position is further strengthened by the circumstance that the fact and source of title are not within his knowledge, but largely, if not exclusively, within that of plaintiff. See Verity v. Peoples State Bank of Baldwin, 1 A.D.2d 833, 148 N.Y.S.2d 333; Rogan v. Consolidated Coppermines Co., 117 Misc. 718, 193 N.Y.S. 163; 5 Carmody-Wait Cyclopedia of New York Practice, p. 144, § 21. We conclude that judgment on the complaint should not have been awarded.

The answer which was stricken out contained counterclaims which must also be examined. In the first, defendant seeks damages for plaintiff's unreasonable delays in filling orders. The moving affidavit states: 'I might state parenthetically that at no time was...