Ernest Ruffer and Others, Copartners Doing Business under the Firm Name of A. Ruffer & Sons, Appellants, v. Waterbury Company, Respondent

Ernest Ruffer and Others, Copartners Doing Business under the Firm Name of A. Ruffer & Sons, Appellants, v. Waterbury Company, Respondent. First Department, December 15, 1922. See headnote in Central Trust & Savings Co. v. Waterbury Co. (ante, p. 602). Appeal by the plaintiffs, Ernest Buffer and others, from a 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 27th day of July, 1918, upon the report of a referee appointed to hear and determine, dismissing the complaint. Alexander & Green [Clifton P. Williamson of counsel; .Edward W. Bourne with him on the brief], for the appellants. Marsh & Wever [Charles Capron Marsh of counsel], for the respondent. [MAJORITY — Smith, J.:] Smith, J.: The decision in this case must follow the decision in the case of Central Trust & Savings Co. v. Waterbury Co. (203 App. Div. 602). There are some distinguishing facts in the case, but none of them, I think, alters the principle of law which must be applied. The contracts in this case were made under the Dockendorff system, as amended in 1911. It is the same contract practically, therefore, as was passed upon in the case of Presser v. Central Trust & Savings Co. (189 App. Div. 721; affd., 232 N. Y. 573). In this case no note was given by the defendant to the plaintiff. I am unable to see, however, in view of the elaborate papers signed by the parties, that the absence of the note is any substantial reason for reaching a conclusion different from that reached in the Central Trust & Savings Co. case. Also, it was provided that Dockendorff should remit to London, the home of the plaintiff, by drafts on London through J. P. Morgan & Co. This has no significance as it simply provides for a method of transmission of funds to the plaintiff living abroad. If the conclusion reached in the Central Trust & Savings Co: case be justified, the facts appearing in this record lead to the same result. The judgment should, therefore, be reversed on the law and facts, with costs, and judgment be directed for the plaintiffs in accordance with plaintiffs’ complaint, with costs. Clarke, P. J., concurs; Greenbaum, J., concurs in result; Merrell and Finch, JJ., dissent. [DISSENT — Finch, J. (dissenting):] Finch, J. (dissenting): For the reasons stated in Central Trust & Savings Co. v. Waterbury Co. (203 App. Div. 602), decided herewith, the judgment should be affirmed, with costs. Merrell, J., concurs. Judgment reversed, with costs, and judgment directed for plaintiffs, with costs. Settle order on notice.