L. B. Foster Co. v. Koppel Industrial Car & Equipment Co. , 215 N.Y.S. 214 ( 1926 )

Proskauer, J.

The action arises from breach of a contract to deliver steel rails. The contract was made in London and provided for an irrevocable letter of credit “ payable in dollars in New York on presentation of ship documents and Hunt’s certificates.” The rails were to be delivered in Baltimore unless otherwise provided. The allegations of the complaint and the affidavits are that no rails, excepting a very small amount, were ever shipped.

Defendant relies upon Gano-Moore Coal Mining Co. v. Deegans Coal Co. (214 App. Div. 634). The court there, however, stressed that it affirmatively appeared that the defendant corporation Was not authorized to do business in New York. The proof here is affirmative that the defendant was authorized to do business in New York and had taken the necessary steps to secure this right. It makes no affirmative allegations that it was not doing business pursuant to this license. It is inferable from the fact of procuring the license that the corporation was acting thereunder and I think the action is maintainable under section 47, subdivision 4, of the General Corporation Law (as added by Laws of 1920, chap. 916). Irrespective of this, however, it is fairly inferable that the cause of action arose within this State and that the action is, therefore, maintainable under subdivision 3.

While the rails were to be shipped to Baltimore, the documents were to be delivered in New York and payment was to be made there against delivery of documents. Defendant urges that the complaint predicates as the breach the failure to ship and not the failure to tender documents. If the goods were not shipped, the documents could not have been tendered and by fair implication there is sufficient allegation of failure to tender the documents.

The averment of the affidavit that the plaintiff performed all the conditions of the contract is sufficient. The affiant, as to damages, swears that he has been engaged in the business for many years, that “ part of his duties has been to keep himself informed of the market prices from day to day of steel rails,” that he was on the day of the breach “ informed of the price of 60 lb. steel rails ” at Baltimore and that the price was as stated. The defendant argues as though the word “ inform ” indicates hearsay. A fair reading of the context shows that it is used in the sense that the affiant is a person informed on this subject.

Point is also made of the circumstance that the damages are predicated on the market price in Baltimore. It may well be that the documents were to be delivered in New York, but that the market price was to be fixed as of Baltimore. While the breach for failure to deliver the documents may have occurred in New York, the place of the delivery of the merchandise was Baltimore, and it would be unjust to vacate an attachment on this highly technical ground. The latest cases on c. i. f. contracts make clear that the place of technical performance is not always the place as of which price is to be fixed. (Dwane v. Weil, 199 App. Div. 719; Willits & Patterson v. Abekobei & Co., Ltd., 197 id. 528; Schopflocher v. Essgee Co. of China, Inc., Id. 781; Penick & Co. v. Helvetia Commercial Co., 212 id. 519.)

Motions denied. Orders signed.