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 Post subject: 1959 Ithaca gun company lawsuit
PostPosted: Sun May 10, 2020 7:34 pm 
Tournament Grade

Joined: Mon Apr 15, 2013 8:18 am
Posts: 108
Do we have on this forum, any real practicing attorneys that can look up "Ithaca gun co inc v A.W.Serio tool co inc" and tell me what I am looking at? I think the court ruled in favor of Ithaca on this.

My interest in this is a model 37 with "A.W. SERIO" on the butt stock. The lawsuit is what I found looking for any information on the name. Looks like I was successful. Now I would just like a better understanding of what happened.




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 Post subject: Re: 1959 Ithaca gun company lawsuit
PostPosted: Sun May 10, 2020 9:36 pm 
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Would love to see a pic of the gun and hear what this lawsuit was about.


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 Post subject: Re: 1959 Ithaca gun company lawsuit
PostPosted: Mon May 11, 2020 3:25 am 
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Quote:

9 A.D.2d 592 (1959)

Ithaca Gun Co., Inc., Respondent, v. A. W. Serio Tool Co., Inc., Appellant

Appellate Division of the Supreme Court of the State of New York, Third Department.

August 13, 1959

It appears from the moving papers that plaintiff and defendant entered into a contract in October of 1954 whereby the defendant was to furnish to plaintiff certain goods for $5,133.72. A short time thereafter such sum was paid in full to the defendant. In March of 1957 the parties had a general discussion over other contracts between them, and at the conclusion of such discussion plaintiff executed a general release to the defendant, which is pleaded as an affirmative defense in the answer. There was no dispute existing or discussed at that time about the 1954 contract mentioned above. It appears that thereafter and in December of 1957 plaintiff requested delivery of the merchandise covered by the 1954 contract, and it is claimed that a partial delivery of merchandise amounting to $2,898.20 was made at that time. Early in 1958 plaintiff demanded delivery of the balance of the merchandise, and when it was not made, brought this action to recover the balance of the money paid defendant. Defendant urges that since the complaint alleges only the contract of 1954, and that the release was executed in 1957, the release is an absolute bar, at least without an amendment of the complaint to allege some cause of action which arose after the execution of the release. Plaintiff claims that although the contract was made in 1954 its claim did not ripen or become a cause of action until after the plaintiff demanded delivery of the merchandise and when delivery was not made demanded the return of the balance of the purchase price. Of course the plaintiff is deemed to have controverted the defense set up in the defendant's answer, and is entitled to show anything that it can in voidance of the release. The moving papers demonstrate a question of fact as to the complete effectiveness and finality of the release.

Order unanimously affirmed, with $10 costs.

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 Post subject: Re: 1959 Ithaca gun company lawsuit
PostPosted: Mon May 11, 2020 4:02 pm 
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While I've earned a good living at the law since 1983, I'm a very poor teacher of it.

To try and explain what happened, without one of my usual overly long posts, here goes:

In October 1954 Serio made a contract (About $5,000) with Ithaca for Serio to supply parts, and got paid in full.

In March 1957 Ithaca probably decided to change suppliers and screw Serio in some way out of other contracts they had with Ithaca. Big companies screw little companies all the time, which is nothing new. But in return for whatever screwing Serio was taking on other contracts, Serio's lawyer demanded Ithaca's lawyer put in a general release that probably said that Ithaca would never sue Serio again.

If Serio had left well enough alone, and never dealt with Ithaca again, we'd likely have never heard about this again.

But in December 1957 Ithaca demanded all the parts they'd paid for in the March 1954 contract, and Serio delivered about $3,000 of them until it dawned on Serio that Ithaca was really trying to screw him again, so Serio quit delivering parts.

In early 1958 Ithaca demanded the remaining $2,000 or so worth of parts from Serio, and Serio said people in hell want ice water, too, and so Ithaca sued Serio for a about a $2,000 refund of the amount Ithaca paid Serio in 1954.

Serio's lawyer raised the defense of the general release that he'd demanded back in March 1957, and tried to get the court of appeals in the third district of New York to throw out Ithaca's case, but Ithaca's lawyer changed the paperwork and made up some kind of excuse that sounded good enough to the court of appeals that the case went back down to the lower court judge again, to give Ithaca another chance to wiggle out of the general release they gave Serio so he'd bend over for his earlier screwing. with costs of $10 assessed against Serio.

Serio was probably so pizzed off, he fired his lawyer, and the case settled.

I say that, because there is no appeal of a later case.

But the moral of the story is that if your lawyer gets a general release to where a big company cannot sue you, don't start trying to get in bed with them again.

All the paperwork and contracts ever made, are no substitute for honest dealing.



I

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 Post subject: Re: 1959 Ithaca gun company lawsuit
PostPosted: Mon May 11, 2020 6:01 pm 
Tournament Grade

Joined: Mon Apr 15, 2013 8:18 am
Posts: 108
Thank you SuperXOne. The gun in question is a 1954 Dollar grade, which would have cost Serio 40% of what the contract was worth, had he paid retail.


Last edited by biglar on Tue May 12, 2020 8:14 pm, edited 2 times in total.

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 Post subject: Re: 1959 Ithaca gun company lawsuit
PostPosted: Mon May 11, 2020 8:07 pm 
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biglar wrote:
Thank you SuperXOne. The gun in question is a 1954 Dollar grade, which would have cost Serio 40% of what the contract was worth, had he paid retail.



More law school stuff.

In 1954 the top marginal tax rate was about 90%.

(It’s about 40% today)

In 1954 as still yet today, people like Serio tried making every dollar he could.

But assuming Serio had decent accountants (we know he had a decent lawyer) if he was having a really profitable year then all the profit he made on his $5,000 Ithaca contract would have been taxed away to where he’d only get $500 to buy a gun, if it was ALL profit. It’s never all profit, but you get the idea that 90% tax rates were punishing.


What a bummer.

So back then there were added incentives for Ithaca to say to Serio deliver us 5,000 one dollar parts later, and we will pay you now, and you can take your expenses and profit in 1954, and by the way we always remember our favorite suppliers at Christmas with our best gifts.

Serio asked his bookkeeper how much expense do we have in making up those 5,000 parts?

Bookkeeper says about $4,000. Boss, you’ll get to keep $50 out of a $1,000 profit, if you pass the thousand through as a Christmas bonus to yourself as regular income. (Or Serio might have retained the thousand in the corporation as corporate income, taxed then at far less than 90%)

So Serio says to Ithaca what did you give your last parts supplier, for Christmas?

Ithaca says a Dollar Grade shotgun, with choice of initials.

Serio says ho, ho, ho,,,it’s going to be a beautiful Christmas!

And Ithaca says to their accountants, here’s a 5,000 deduction for pre paid expenses and another one for $500 we have in a Dollar Grade we are giving a supplier.


And maybe that’s how the Serio Dollar Grade, was born.:)

But ask an accountant.

Lawyers don’t get Dollar Grade shotguns for Christmas.:)

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 Post subject: Re: 1959 Ithaca gun company lawsuit
PostPosted: Tue May 12, 2020 12:16 am 
Tournament Grade

Joined: Mon Apr 15, 2013 8:18 am
Posts: 108
Now that`s an interesting story.


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 Post subject: Re: 1959 Ithaca gun company lawsuit
PostPosted: Tue May 12, 2020 11:57 am 
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Location: Upstate NY
Neat. Thanks for the info.


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 Post subject: Re: 1959 Ithaca gun company lawsuit
PostPosted: Tue May 12, 2020 10:53 pm 
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Out of curiousness I googled A W Serio Patents

https://patents.google.com/patent/US2982577A/en band for coffeepots

https://patents.google.com/patent/US2204158A/en strainer for coffeepots

It seems Anthony W. Serio, was probably born in 1904 and died in 1979 in Flushing, Queens, New York, and in those years he managed to have a couple of patents, and managed to get a Dollar Grade Ithaca in 1954 for some deal he later regretted making with the Ithaca Gun Company.

He left tracks in this world, before he left it. This may not be him, but it's the closest fit.

https://www.ancestry.com/genealogy/reco ... 24-44l1sj5

I wonder what part Ithaca thought Serio could make cheaper than they could, in house?

Could it have been the Ray Bar sights?

They were new for the 1955 models.

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I have never considered a difference of opinion in politics, in religion, in philosophy, as a reason for withdrawing from a friend. Thomas Jefferson


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 Post subject: Re: 1959 Ithaca gun company lawsuit
PostPosted: Wed May 13, 2020 2:57 pm 
Crown Grade

Joined: Wed Dec 21, 2005 11:09 am
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SuperXone, Have you ever considered giving up law and taking up fiction writing? {hs#
Walt


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 Post subject: Re: 1959 Ithaca gun company lawsuit
PostPosted: Thu May 14, 2020 5:23 pm 
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ithacanut wrote:
SuperXone, Have you ever considered giving up law and taking up fiction writing? {hs#
Walt


For thirty seven years, I've been hearing somebody tell me a story about their legal troubles, and wondering what the real story was.

The real story, is almost always more fascinating than the original story.


There was a contract between Anthony W. Serio and Ithaca in October 1954.

There's a 1954 dollar grade Ithaca shotgun with Serio's name on it.

There's a lawsuit that went to the court of appeals on discovery matters, in 1959.

There were two patents in Serio's name, and a probable hit on his date of death.

It doesn't take much of a lawyer to make that into a real story.

I'd write fiction, but just today I heard several stories, that I'll get to make into real stories by the time I'm through, and get paid to do it. :)



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I have never considered a difference of opinion in politics, in religion, in philosophy, as a reason for withdrawing from a friend. Thomas Jefferson


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