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

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 19, 1940

StatusPublished

This text of 259 A.D. 301 (Cities Service Oil Co. v. Soranno) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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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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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.

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Bluebook (online)

259 A.D. 301, 19 N.Y.S.2d 1, 1940 N.Y. App. Div. LEXIS 6126, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cities-service-oil-co-v-soranno-nyappdiv-1940.