McKellar v. . American Synthetic Dyes, Incorporated

Per Curiam. The motion for a re-argument is denied, with ten dollars costs and printing disbursements. The alternative motion is addressed to our discretion. From its opinion we infer that the Appellate Division reached the conclusion' that the defendant had not had a fair trial for the reason that the court had misinterpreted a contract that formed the basis of the plaintiff’s claim. It had been held that under this contract if the plaintiff brought about a sale of picric acid to the Russian government he was entitled to the commission therein *604 specified. The Appellate Division thought the agreement was that only if the plaintiff procured such a sale through an introduction he was then giving to the defendant was the commission earned. As a matter-of law we agreed with neither court. We thought the meaning to be given to this contract was a question of fact to be solved by a jury, but in view of the form of the order before us we could not discuss this question and to. send the case back for amendment, in view of the stipulation given by the appellant for judgment absolute, to permit an amendment which would result in an order from which no appeal might be taken .and which- even if the appeal was allowed to be withdrawn would result in a new trial on an erroneous theory, seemed undesirable. On this motion, however, a different condition exists. We may consider which if either interpretation of the contract given by the courts below is correct and we have somewhat more freedom on the question of terms. We grant the motion to remit the case to the Appellate Division for the purpose of permitting that court in its discretion to so amend its order and judgment as to specify the particular question of fact, if any, upon which its reversal is based. We do so, however, on condition that within ten days of the entry and service of this order the respondent pay to the appellant the costs of this appeal and serve upon the appellant a stipulation that the appellant may within twenty, days of the entry and service upon him of any order of the Appellate Division amending its prior order herein, withdraw without costs his notice of appeal and his stipulation for judgment absolute. And on the further condition also that the application to the Appellate Division be made at the first session of such court following the making of this order. Upon the failure of the respondent to comply with each and all of these conditions the motion to remit is to be denied.