SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
November 21, 1968
JOSEPH B. COOPER & SONS, INC., RESPONDENT,
JAMES TALCOTT, INC., APPELLANT
Concur -- Botein, P. J., Eager, Steuer, Capozzoli and McNally, JJ.
To the extent that plaintiff relies on the New Jersey statute quoted in part in the complaint (N. J. Stat. Ann. § 14:14-2), the action would seem to be barred since financing statements under the Uniform Commercial Code had been filed before creation of the indebtedness due plaintiff from American Setting, its customer. If the New Jersey statute is put aside (but see James v. Powell, 19 N.Y.2d 249, 256) and the action taken as one for "a money recovery from the defendant as a tort feasor", to quote from plaintiff's brief, it is significant that the complaint alleges no more than that plaintiff is a simple contract creditor of American Setting (see Northville Dock Corp. v. Aller, 15 A.D.2d 947
, affd. 15 N.Y.2d 498).
Order entered April 16, 1968, denying motion to dismiss complaint, unanimously reversed, on the law, and complaint dismissed, with $50 costs and disbursements to appellant.
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