Atlantic & Pacific Packing Co. v. Weinstein

274 A.D. 936, 83 N.Y.S.2d 779, 1948 N.Y. App. Div. LEXIS 4165

Opinion

Action to recover damages in connection with the sale of a quantity of canned salmon. Defendant moved for summary judgment dismissing the third amended complaint, pursuant to rule 113 of the Rules of Civil Practice, or, in the alternative, to dismiss the complaint, pursuant to rule 106 of the Rules of Civil Practice. Order denying defendant’s motion affirmed, with $10 costs and disbursements. The second cause of action pleaded in the complaint, as a matter of mere pleading, is sufficient. Questions urged in respect of it may be determined only on a trial as, for instance, the question as to the effect of the claimed offer of delivery of 300 cases and the questions in respect of passing of title. Nolan, P. J., Carswell, Johnston, Adel and Sneed, JJ., concur.