APPEAL by the plaintiff, Joseph Czerney, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 21st day of December, 1910, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the plaintiff's demurrer to a separate defense and counterclaim contained in the answer.
Edgar N. Dollin, for the appellant.
Louis H. Moos, for the respondent.
The complaint alleges that the defendant, April 5, 1910, made and delivered to C. Slanina & Co. a promissory note to their order for value received for $717, payable two months
after date at the First National Bank of Guttenberg, N. J.; that thereafter and before the commencement of this action said note was duly indorsed and delivered by the said payees thereof to the plaintiff, and the plaintiff is now the holder and owner thereof; that no part of said note has been paid, and that the whole amount is due, with interest.
For a first separate and distinct defense and by way of counterclaim, defendant alleges that the plaintiff is not the real party in interest, but that C. Slanina & Co., a copartnership composed of Carl Slanina and Fritz Lang of Zuckmantel bei Toplitz-Schonau, Bohemia, are the real parties in interest; that the plaintiff took the said note as their agent and is the holder thereof for the purpose of collection only; that the said company and the plaintiff know and are chargeable with the knowledge of all the facts hereinafter set forth; that the defendant was and now is engaged in the sale of mineral waters and mineral water bottles and other articles in the city of New York; that in November, 1909, the defendant and the said firm of Slanina & Co. for a valuable consideration directly and through their agent, the plaintiff herein, entered into an agreement for a valuable consideration with the plaintiff whereby said firm agreed to sell and deliver to the defendant 50,000 vichy or seltzer siphons at certain stipulated times in certain stipulated quantities, the terms of which are annexed to the answer and made part thereof, and that the defendant herein has performed all the conditions on his part to be performed; that subsequent to the making of said agreement as aforestated, and before the delivery of the said bottles, and in reliance upon the aforesaid contract and upon the warranties and representations made to the defendant as aforestated, this defendant signed a promissory note made payable to the said Slanina & Co., being the note mentioned in the plaintiff's complaint; that thereafter said firm in violation of their said agreement failed and refused to deliver the said vichy siphons so contracted for though due demand was made therefor, by reason of which defendant was forced and compelled to go to the open market and purchase other vichy siphons similar in character and style to the ones contracted for and was forced and compelled to pay therefor an added and additional
cost of $2,000; that subsequent to the giving of the said note the said firm failed and refused to make the future delivery as called for in the contract, thus necessitating the purchase of similar siphons as aforestated from other firms; that prior and subsequent to the making of the contract with the firm of Slanina & Co., this defendant entered into an agreement with other firms and people for the delivery and sale of the said siphons, relying upon the contract made by this defendant with the said firm, and the warranty made by the plaintiff as agent, as to delivery; that defendant, in order to fill his contracts so made with the third parties, was compelled to purchase bottles similar in character and style to the ones ordered from the said Slanina & Co., at an additional cost of $2,000; that solely by reason of the premises and the default of the said C. Slanina & Co. and by reason of the breach of the contract entered into and the failure to deliver the said bottles, this defendant suffered damages in the sum of $2,000; wherefore he demanded that the complaint be dismissed on his counterclaim and the defendant have judgment on the counterclaim in the sum of $2,000.
Attached to the answer is the following paper signed by C. Slanina & Co., dated November 15, 1909, addressed to the defendant: 'We beg to acknowledge receipt of your written contract given to our representative, Mr. Joseph Czerney of Brooklyn, for the following: 50,000 pieces 28 oz. siphons at following prices: 44 Heller for 28 oz. with or without ring at bottom (white); 56 Heller for 37 oz. with or without ring at bottom (white); 66 Heller for 44 oz. with or without ring at bottom (white), F. O. B. our factory, 2% for breakage, 2% for cash and beg to thank you for same. Our understanding of same is as follows: The shipments will be made: During the month of Feb., 1910, 1 wagon; during the month of Mar., 1910, 1 wagon; during the month of Apr., 1910, 1 wagon; during the month of May, 1910, 1 wagon; during the month of June, 1910, 1 wagon; during the month of July, 1910, 1 wagon, or 1 or 2 wagons more as needed. You will receive from us, A No. 1 Bohemian bottles, such as we send to America, the said bottles having a pressure of 300 lbs. per cubic inch. We also guarantee
the bottles to weigh 21/2 or 3 lbs. and will ship same in barrels. We would also ask you to please send mold for ...