Cities Service Oil Co. v. Soranno

Appellate Division of the Supreme Court of New York

Cities Service Oil Co. v. Soranno

259 A.D. 301, 19 N.Y.S.2d 1, 1940 N.Y. App. Div. LEXIS 6126

Appellate Division of the Supreme Court of the State of New York·Decided April 19, 1940·Published

Opinion

Per Curiam.

We find no error in the court’s charge for the reason that the burden was upon the plaintiff to establish that under the contract it was entitled to recover the amount alleged to be due. The offset contained in the answer consisted of allegations that by the contract, under which the fuel oil was delivered, the defendant was entitled to a discount on the purchase price. Although these allegations of the answer are affirmative in form, [302]*302they constitute, in fact, denials of the contract alleged by the plaintiff and which the plaintiff had the burden to establish.

The judgment, so far as appealed from, should be affirmed, with costs.

Present — Martin, P. J., O’Malley, Townley, Glennon and Untermyer, JJ.; O’Malley, J., dissents and votes to reverse and grant a new trial.

Judgment affirmed, with costs.

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Per Curiam.

We find no error in the court’s charge for the reason that the burden was upon the plaintiff to establish that under the contract it was entitled to recover the amount alleged to be due. The offset contained in the answer consisted of allegations that by the contract, under which the fuel oil was delivered, the defendant was entitled to a discount on the purchase price. Although these allegations of the answer are affirmative in form, [302]*302they constitute, in fact, denials of the contract alleged by the plaintiff and which the plaintiff had the burden to establish.

The judgment, so far as appealed from, should be affirmed, with costs.

Present — Martin, P. J., O’Malley, Townley, Glennon and Untermyer, JJ.; O’Malley, J., dissents and votes to reverse and grant a new trial.

Judgment affirmed, with costs.

Cities Service Oil Co. v. Soranno, 259 A.D. 301, 19 N.Y.S.2d 1, 1940 N.Y. App. Div. LEXIS 6126 (N.Y. Ct. App. 1940).

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259 A.D. 301 (Cities Service Oil Co. v. Soranno) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.