Hendries, Inc. v. American Express Co. , 316 N.Y.S.2d 554 ( 1970 )

McGivern, J. P. (dissenting in part).

I would reverse so much of the order as grants plaintiff summary judgment. Summary judgment is unsuitable under the premises. We are confronted with two competing principles: one, that the defendants always had title, and two, that notwithstanding, they permitted B.N.S. to exercise apparent dominion over the goods, giving rights to purchasers of good faith. To my mind, there are too many crosscurrents, involving mixed questions of law and facts, to justify summary judgment to either party. (Janos v. Peck, 21 A D 2d 529; Stone v. Goodson, 8 N Y 2d 8.) The majority opinion but demonstrates this conclusion.

Markewich and McNally, JJ., concur with Maoken, J.; McGxvern, J. P., dissents in part in an opinion.

Orders, Supreme Court, New York County, entered on July 7, 1970, reversed, on the law, the judgment entered thereon vacated, plaintiffs’ motions for summary judgment denied, and defendants-appellants ’ cross motions for summary judgment granted awarding them possession of the warehouse receipt or, in the alternative, judgment for the value of the goods thereby represented in an amount to be determined by the court below. Appellants shall recover of respondent $50 costs and disbursements of this appeal.