Rubin v. Dairymen's League Co-operative Ass'n , 264 A.D. 749 ( 1942 )

Plaintiff has appealed from an order of the Albany Special Term of the Supreme Court denying his application for a new trial on the ground of newly-discovered evidence and by reason of fraud practiced by defendant on plaintiff. The action was for an accounting and the issues were tried in March, 1939. Plaintiff had a contract with defendant to sell its products in Sullivan county. The trial court found that the agreement was terminated on April 9, 1935, and that plaintiff failed to perform the contract after that date. The judgment of the trial court was affirmed in this court (259 App. Div. 23) and also in the Court of Appeals (284 N. Y. 32). Plaintiff now contends that defendant recognized the existence of the contract after April 9, 1935. In view of the fact that plaintiff did not perform the contract after that date, whether defendant recognized the agreement or not is entirely immaterial. The proof, however, fails to show that defendant did recognize the agreement. There is no proof to sustain plaintiff’s claim of fraud. Order unanimously affirmed, with twenty-five dollars costs and disbursements. Present — Hill, P. J., Bliss, Heffernan, Schenck and Foster, JJ.