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Muller v. Kling

Supreme Court of New York, Appellate Division

February 2, 1912

FREDERICK MULLER and Others, Copartners, Doing Business under the Firm Name and Style of MULLER, SCHALL & COMPANY, Plaintiffs,
v.
JOSEPH KLING, as General Assignee for the Benefit of Creditors of the Firm of SCHOLTZ, SANCHEZ & COMPANY, Defendant.

Page 177

SUBMISSION of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.

COUNSEL

George A. Strong, for the plaintiffs.

Charles S. Yawger [Graves & Miles, attorneys], for the defendant.

OPINION

MILLER, J.:

On May 9, 1898, the firm of Scholtz, Sanchez & Co. drew the following draft:

'No. 1233. NEW YORK, May 9th, 1898.

'No. 45305 ne varietur.

'Exchange for Frcs. 35,000.

'At sixty days after sight of this first of exchange (Second not paid) pay to the order of Messrs. Muller, Schall & Co. the sum of thirty-five thousand francs. Value received which place to account as advised.

'SCHOLTZ, SANCHEZ & CO.

'(de N. & C. ie.)

'To Messrs. Demachy & F. Seilliere, Paris.

'Rue de Provence 58.'

Page 178

And on May 10, 1898, in the city of New York, sold it to the plaintiffs, the payees, and received therefor the sum of $6,662.50. To induce the plaintiffs to purchase the draft, the drawers exhibited to them a letter, written by the drawees, promising to accept the drawers' drafts up to the limit of 250,000 francs upon the security of drafts drawn by the latter upon Jose Invernizio of Tortona, Italy, to be furnished therewith; and at the same time the said drawers informed the plaintiffs that they would secure said draft by sending to the drawees another for like amount upon said Invernizio, and that the latter was indebted to them in that amount upon an open account for goods sold, which was the fact. The said drawers did draw the following draft:

'Scholtz, Sanchez & Co. No. 1234.

'NEW YORK, May 9th, 1898.

'Exchange for Frc. 35,000.

'At sixty days after sight of this first of exchange (Second not paid) pay to the order of Messrs. Demachy & F. Seilliere the sum of thirty-five thousand francs. Payable in Paris. Value received which place to account as advised.

'SCHOLTZ, SANCHEZ & CO.

'To Mr. Jose Invernizio, Tortona, Italy.'

And sent it to the payees therein named, the drawees of the first draft, with a letter of ...


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