King Kullen Grocery Co. v. "John Doe"

264 A.D. 886, 35 N.Y.S.2d 704, 1942 N.Y. App. Div. LEXIS 8101

Opinion

In an action to restrain the defendants from conducting or operating any stores or markets under the name “ King Kullen,” for damages and an accounting of profits, order directing dismissal of the complaint on the merits, and judgment entered in accordance therewith, reversed on the facts and a new trial granted, with costs to appellant to abide the event. It appears to us that there never has been a considered trial of this ease on the merits; nor have findings been made by a justice who, with the duty of making a decision, had opportunity to observe the witnesses and to appraise their credibility. We reverse, therefore, in the interest of justice. The task of the trier of the facts is to piece out the oral and informal agreement which was made by the parties, despite the attempts of witnesses on both sides to take advantage of its nature and to distort its terms in their favor. Lazansky, P. J., Hagarty, Carswell, Adel and Close, JJ., concur.