N. V. Simons' Metaalhandel v. Hyman-Michaels Co. , 174 N.Y.S.2d 473 ( 1958 )

Per Curiam.

In this action by plaintiff against defendant Hyman-Michaels Company for breach of contract for failure to deliver steel, summary judgment has been granted in favor of plaintiff.

We are of opinion that triable issues exist in the dispute between the parties arising over the purported breach of contract. One of those issues is whether the parties had actually reached an agreement on the precise steel contemplated in making the sale.

The invoice sent by defendant to plaintiff was for steel “ as inspected ” by plaintiff’s representatives; and there is some proof that as to a portion of this steel, there had been no such inspection. It is argued, therefore, that as to this the contract would not be enforeible against plaintiff and the agreement lacked reciprocity as to a portion of the steel and would not be enforeible against defendant.

A quite different interpretation of the contract is argued by the plaintiff; but in looking at this area of the dispute it seems to us that a triable issue emerges which may not be given a summary resolution.

Moreover the moving affidavits on the plaintiff’s motion for summary judgment are entirely by one of plaintiff’s attorneys; and while he has documents and other evidence in his possession and makes reference to an examination before trial, the people who actually handled the contract have not sworn to establish a direct narrative of events; a vice-president of defendant swears that the sale contemplated only the steel actually inspected by plaintiff’s representatives and that some of the steel in dispute was not so inspected.

We do not undertake to express definitive views on the merits; we hold merely there should be a trial.

The motion by the codefendants, Associated Metals & Minerals Corp. of New York and Michael Flynn, Inc., for summary judgment against defendant, Hyman-Michaels Company on its cross complaint was properly denied.

The order entered January 14, 1958 appealed from should be modified, on the law, by denying plaintiff’s motion for summary judgment and, as so modified, should be affirmed, with $20 costs and disbursements of this appeal to the defendant-appellant Hyman-Michaels Company against the plaintiff-respondent. The order entered December 5, 1957 appealed from should be affirmed, with $20 costs and disbursements of this appeal to the defendant-respondent, Hyman-Michaels Company against the defendants-appellants, Associated Metals & Minerals Corp. of New York and Michael Flynn, Inc.

Settle order.

Breitel, J. P., Rabin, McNally, Stevens and Bergan, JJ., concur.

Order entered January 14, 1958 unanimously modified, on the law, by denying plaintiff’s motion for summary judgment and, as so modified, affirmed, with $20 costs and disbursements to defendant-appellant Hyman-Michaels Company against the plaintiff-respondent.

Order entered December 5, 1957 unanimously affirmed, with $20 costs and disbursements to defendant-respondent, Hyman-Michaels Company, against the defendants-appellants, Associated Metals & Minerals Corp. of New York and Michael Flynn, Inc.