
    Moses Packard and Nathan J. Packard, Respondents, v. The Automobile Club of America, Appellant.
    (Supreme Court, Appellate Term, First Department,
    June, 1915.)
    Assignments — pleading — defects — goods sold — estoppel.
    In the absence of an allegation of nonpayment, a complaint by an assignee of a claim for goods sold and delivered states ho cause of action.
    But where nonpayment is proved before the close of plaintiff’s case, the defect in pleading may be regarded as waived by defendant in the absence of a motion at the opening of the trial based on the insufficiency of the complaint.
    Where it appears that the assignment of the claim in suit was made before the sale and delivery of the goods to defendant, plaintiff fails to prove a cause of action.
    That an employee but not an officer of defendant O.K.’d the account before defendant accepted the assignment did not estop defendant from proving that there was no delivery of goods before the assignment.
    
      Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Bronx, second district, in favor of plaintiffs.
    Carter, Ledyard & Milburn (Edwin D. Bechtel, of counsel), for appellant.
    Isaac Josephson, for respondents.
   Guy, J.

The verified complaint alleges a sale and delivery by Tagart & West, Inc., to the defendant on or about May 2, 1913, of seven tons of linotype metal at the agreed price of $200 per ton; that thereafter and on or about November 20‘, 1913, the vendor duly transferred to the plaintiffs “ the cause of action herein-before set forth and the money due thereunder;” and judgment is demanded for $500:'

On the trial the plaintiffs were allowed to give evidence tending to show that the assignment was made on or about May 17, 1913, over five months before the date alleged in the complaint. No delivery of the metal to the defendant on or before May 17, 1913, was proven.

It appears that the plaintiff’s assignor had the contract for printing, binding and publishing the defendant’s 1913 tour book, and on or about June 5,1913, an arrangement was made between them by which the assignor was to keep in its shop, separate and apart from its own stock, the 14,000 pounds of metal in question, 240 reams of paper and a quantity of leather for binding; that the sum of $7,000 was agreed upon as the price to be paid by defendant to the assignor for this material and also labor to be performed by the publisher; that on May 26, 1913, $1,000 had been paid by defendant on account, and on June fifth, the balance, $6,000, was paid by check, which included $1,400 for the linotype metal. Subsequently defendant brought a replevin action for the possession of this property, but only a small portion was recovered. No claim was made by the plaintiffs herein against defendant until about December, 1913.

Although Mr. Tagart, president of plaintiffs’ assignor, testified that-he sold the metal to the defendant on May 2, 1913, and that ‘ the price appearing on the bill is $1,400, ’ ’ he further stated ‘ The consideration of this metal was I should get all the printing of The Automobile Club of America and that I should get this metal and start to print the year book, a job that ran into thousands and thousands of dollars.”

The complaint failed to state a cause of action for the reason that it contained no allegation of nonpayment by the defendant to plaintiffs’ assignor (Diskinson v. Tyson, 125 App. Div. 735) but considering the proof at the end of the plaintiffs’ case this defect may b„e regarded as having been waived by the defendant, in the absence of a motion at the opening of the trial based on the insufficiency of the pleading. Nevertheless the plaintiffs failed to prove the cause of action alleged, which was an assignment of a claim for goods sold and delivered to the defendant, for, as before stated, no delivery to the defendant on or before May 17, 1913, was proven.-

The plaintiffs contend that the defendant is estopped from denying the existence of a cause of action against it in their favor because it is claimed that one T. S. Trebell, an employee, but not an officer of defendant, O.K’d the account before the assignment was accepted by them. It also appears, however, from the plaintiffs’ testimony that on or about May 17, 1913, they sent a written request to the defendant for the confirmation of the account, enclosing a postcard for reply, and no answer was received from the defendant. Tagart testified that he was not positive of the date when Trebell O.K’d the account; that he should say ‘ it was within two or three days of this time; ’ ’ that he did not believe the O. K. was given in June, 1913.

The plaintiffs failed to establish the alleged cause of action which they attempted to set out in their complaint, and their claim arising out of the alleged estoppel of the defendant was not satisfactorily proven.

Lehman and Whitaker, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant, to abide event.  