Tilzer v. Battery Park Trading Co. , 185 N.Y.S. 397 ( 1920 )

Clarke, P. J.:

The action was brought to recover $7,320 for goods sold and delivered. The goods were canned fruits and were exported to England. The answer contained two counterclaims, one amounting to $2,832 for failure to deliver certain cases of goods under the contract. The second counterclaim was for $9,667 for damages upon the ground that a large part of the goods shipped by plaintiffs were not according to sample submitted, and were not of the brands, or quality agreed upon, and warranted and represented by plaintiffs to defendant, but on the contrary were goods of inferior quality.

Issue was joined by the service of a reply on the 3d of December, 1919. The plaintiffs noticed the case for trial at the first term it could be noticed for, namely, the January, 1920, term and on February twenty-fourth made a motion to place said case on the short cause calendar, and by order said case was set down for trial on March eighth. By order to show cause dated March sixth, returnable at two p. m. on said day, the defendant made an application for the issuance of a commission to take the testimony of certain witnesses residing in the city of Liverpool, Eng., for the purpose of proving its counterclaim, an inspection of said goods not having been had until their delivery in England. The papers presented upon the motion for said commission exhibit a state of facts which entitle the defendant to the commission prayed for. A representative of defendant upon receiving complaints from their English representatives had in December sailed for England for the purpose of obtaining the necessary facts and the names of witnesses, and there would have been no difficulty in obtaining the necessary data upon which to frame interrogatories and to have the evidence taken and returned long before a trial of the case could have been had under ordinary circumstances. But the case was moved onto the short cause calendar as an action on contract and the time of trial was, therefore, advanced. The question presented upon a motion to advance the trial under the rule is whether under the pleadings the plaintiffs are entitled to short cause the case. The fact that a case has been shortcaused is no reason why because thereof a motion for a commission to take testimony should not be granted upon good cause shown, nor would it be any answer to a motion to short cause that the issuance of a commission was necessary. The two motions were not interdependent nor should one necessarily be denied because the other is granted. The defendant made repeated attempts to preserve its rights, but the motion for a commission having been denied was forced to trial without having any evidence to sustain its counterclaim, and haying no defense to the cause of action pleaded, except by way of counterclaim, a verdict was directed by the court in plaintiffs’ favor for the full amount sued for.

I do not agree with my brother Dowling that the defendant has been guilty of laches, but on the contrary it seems to me that it was unduly and improperly forced to trial in a practically defenseless condition. It seems to me that it is acting in entire good faith and that it should be given an opportunity to procure, its evidence and present -a claim which there is no reason upon these papers to suspect is not meritorious. I advise that the judgment appealed from be reversed and a new trial ordered, with costs to appellant to abide the event, that the order denying the motion for a commission to take testimony be reversed and the motion granted, with ten dollars costs and disbursements, and that the appeal from the order denying the motion for reargument of said motion be dismissed without costs.

Laughlin, Merrell and Greenbaum, . JJ., concur; Dowling, J., dissents.