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Harrington v. Norco Fruit Distributors, Inc.

39 A.D.2d 872 Court N.Y. App. Div. Decision date 1972-06-20 English

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p. 872
Albert W. Harrington, as Assignee of United Apple Sales, Inc., Respondent, v. Norco Fruit Distributors, Inc., et al., Defendants, and E. F. Hutton & Company, Inc., Appellant.

Order, Supreme Court, New York County, entered on February 1, 1972, denying motion pursuant to CPLR 3211 to dismiss the complaint, unanimously reversed, on the law, the

p. 873
motion granted, the complaint dismissed and the action severed as to defendant-appellant. Appellant shall recover of respondent $50 costs and disbursements of this appeal. Neither the complaint nor the opposing affidavit set forth facts in support of the conclusory allegations of the complaint. Defendant-appellant, as broker in the transaction, was under no obligation except as provided in section 7-507 of the Uniform Commercial Code. Plaintiff has not submitted evidence of knowledge of any fact on the part of the appellant impairing the validity or worth of the commodities contracts for future delivery here involved. (Indig v. Finkelstein, 23 N Y 2d 728 ; Aetna Ins. Co. v. Allstate Co., 33 A D 2d 551 .) Concur — Stevens, P. J., McGivern, Kupferman, Murphy and McNally, JJ.

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