Armour & Co. v. Sekon Lodge on Fish Rock, Inc. ( 1960 )

Appeal by defendant Willy from an order of the Supreme Court, Special Term, Franklin County, which denied his motion for summary judgment dismissing, as to him, the complaint in an action to recover for groceries, meats and other food supplies sold and delivered, apparently for use in a hotel owned by defendant Willy and allegedly leased by him to defendant Dellevie by an unrecorded lease of which plaintiff denies knowledge. T'he complaint alleges sale and delivery to the three defendants named. The moving defendant urges that the invoices indicate that the sales were made to the corporate defendant, but under the circumstances the form of the invoices is not conclusive on this motion. Plaintiff’s answering affidavits set forth conversations with defendant Willy in which he stated that he was going to run the hotel during the 1955 Summer season and that defendant Dellevie was to toe associated with him; that plaintiff’s representative told Willy that plaintiff would not extend credit to either the corporation or Dellevie nor sell any merchandise except to Willy on his personal responsibility; and that all items delivered prior to August 17, 1955 were promptly paid for. The Special Term correctly held that triable issues of fact exist. It is possible that upon the trial the proof of all the pertinent facts and surrounding circumstances will compel, or at least admit of, the conclusion that the arrangement, if made, was one of guarantee to which, as movant contends, the defense of the Statute of Frauds might be applicable; but that is not the purport of the complaint now before us. Order unanimously affirmed, with $10 costs. Present — Bergan, P. J., Coon, Gibson, Herlihy and Reynolds, JJ.