Fulton Bag & Cotton Mills, Inc. v. Frankel — 234 N.Y. 580

Majority

p. 580

Fulton Bag & Cotton Mills, Inc., Appellant, v. Joseph Frankel et al., Copartners under the Firm Name of Frankel Brothers, Respondents.

Headnote

Contract — sale — when seller bound to tender delivery of goods purchased at place of business of purchaser without payment in advance.

Fulton Bag & Cotton Mills, Inc., v. Frankel, 196 App. Div. 701 , affirmed.

(Argued October 17, 1922;

decided November 21, 1922.)

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department,

p. 581

entered June 8, 1921, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court at a Trial Term. The action was to recover damages for an alleged breach of contract by defendants in failing to accept and pay the price of goods purchased from the plaintiff. The contract of sale provided: “ Goods to be taken out prior to November 25th, 1918 * * *. Delivery; After completion your order Sept. 18th; 10 bales every ten days. Freight paid to 318 East 32nd Street, N. Y. C.” The question was whether it was incumbent on the plaintiff to tender delivery of the goods to the defendants at their place of business in the city of New York without payment in advance, or whether it was defendants’ duty to call for the goods at the seller’s place of business and tender payment in advance and demand delivery there.

Clifford Seasongood and Thomas A. Eager for appellant.

Ira Skutch and Benjamin F. Feiner for respondents.

Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Hogan, Cardozo, Pound, McLaughlin, Crane and Andrews, JJ.