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Russell v. Wilber

Supreme Court of New York, Appellate Division

March 6, 1912

SOLOMON W. RUSSELL, Appellant,
v.
JOHN S. WILBER, Respondent.

Page 53

APPEAL by the plaintiff, Solomon W. Russell, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Warren on the 25th day of November, 1911, upon the decision of the court rendered after a trial at the Warren Special Term sustaining the defendant's demurrer to the complaint.

COUNSEL

Charles P. Coyle and Henry W. Williams, for the appellant.

P. R. Chapman, for the respondent.

BETTS, J.:

The complaint herein alleges a sale by plaintiff to defendant of a bill of lumber on August 27, 1910, amounting to $946.61, for which defendant agreed to pay that amount and that no part thereof has been paid except the sum of $65 in the way of services in drawing and loading the lumber; that to induce plaintiff to sell to defendant said lumber the 'defendant falsely and fraudulently represented to plaintiff that he was the owner in his own name of several thousand dollars worth of real estate in the City of Troy, and in the town of Tinmouth, Vermont; that it was wholly unincumbered, and was worth a large amount of other property and was not owing one dollar to any man. That the plaintiff, relying upon these representations of defendant so made by defendant to plaintiff, sold and delivered the said lumber in value of $946.61-100 to defendant, for which the defendant agreed to pay 946.61-100 dollars. That the said representations so made by defendant were untrue and false.' At the time such representations were made and at the time of the purchase of the said lumber the defendant was owing many bills to different parties and was wholly insolvent which the defendant well knew, and the defendant did not intend to pay

Page 54

for said bill of lumber at the time of said purchase and that the defendant made a written statement of his financial condition similar to as above stated, which statement was false and untrue and made for the purpose of inducing plaintiff to sell and deliver to the defendant the said lumber upon a credit of sixty days; that plaintiff procured a judgment in this court against said defendant for the purchase price of said lumber; that the same was docketed in the county of Rensselaer, an execution was duly issued to the sheriff of Rensselaer county; that said sheriff returned said execution wholly unsatisfied; that thereafter plaintiff examined said defendant in supplementary proceedings in the city of Troy, N.Y. ; that in said examination it was shown that defendant is and was insolvent August 27, 1910; that by reason of said false and fraudulent representations the plaintiff has been put to great trouble and expense, to wit, the sum of $75 in putting said claim in judgment, paying the necessary expense in examining said defendant in supplementary proceedings.

The complaint demands judgment against the defendant for $973.75 with interest from the 13th day of April, 1911.

The defendant demurred to the complaint: ' First. Upon the ground that there is another action pending between the same parties for the same cause. Second. Upon the ground that the complaint does not state facts sufficient to constitute a cause of action.'

The demurrer came on for argument and was sustained at Special Term. The court there held that another action is pending between the same parties for the same cause, and that the complaint does not state facts sufficient to constitute a cause of action, and the demurrer was sustained, with permission to file and serve an amended complaint upon the payment of costs.

From that judgment an appeal is taken to this court.

The question here is in a very narrow compass. It is whether a party who has sold goods upon the strength of false representations of solvency by the purchaser may obtain a judgment against the purchaser for the full amount of his claim, and after an examination in supplementary ...


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