A. L. Gosselin Corp. v. Mario Tapparelli Fu Pietro of America, Inc.

Headnote

Pleading — contract — insufficiency of complaint to allege cause of action in equity to obtain possession of fund deposited for use in part payment for merchandise to be delivered.

’ Gosselin Corpn. v. Mario Tapparelli Fu Pietro of America, Inc., 191 App. Div. 580 , affirmed.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial depart

ment, entered April 30, 1920, which reversed an order of Special Term granting a motion by plaintiff for judgment in its favor upon the pleadings and denied said motion. Plaintiff contracted to sell and deliver to one of the individual defendants caustic soda in four shipments of five cars each. The purchaser controlled the defendant corporation which thereafter entered into a written contract with plaintiff reciting that in consideration of its delaying shipments of the soda it would deposit $20,000 with the defendant Irving National Bank to be withdrawn in four equal parts as part payment for the respective shipments. The defendant, respondent, deposited with said bank $20,000 par value United States bonds. Thereafter it authorized payment of one-fourth of said bonds to plaintiff on account of first shipment. Plaintiff thereafter tendered the second shipment and demanded payment therefor which tender and demand was refused. Plaintiff claiming breach of contract brought this action in equity to obtain possession of the bonds so deposited. Defendant, respondent, demurred on the ground of inadequacy of facts alleged and that plaintiff had an adequate remedy at law. The following question was certified: “1. Does the complaint herein state facts sufficient to constitute a cause of action in equity? 2. If the complaint herein does not state facts sufficient to constitute a cause of action in equity, is the defendant entitled to judgment sustaining the demurrer and dismissing the complaint? ”