Carl J. Eisert Equipment Corp. v. A & M Wallboard, Inc. , 359 N.Y.S.2d 298 ( 1974 )

Order, Supreme Court, New York County, entered March 20, 1974, unanimously reversed on the law, without costs and without disbursements, and motion granted and partial summary judgment awarded plaintiff for $9,175, and interest, and case remanded for trial on the issues of the number of hours and the contract price of the rental and the validity of the alleged setoffs. This action, originally in the form of foreclosure of a mechanic’s lien, is for the contract price for the rental of a crane. Upon receipt of plaintiff’s invoice defendant Wallboard wrote a letter contesting the amount of the charges and setting forth its version of the number of hours the crane was used and the rental price agreed upon. Defendant also claimed certain setoffs. On this motion defendant claims that the person acting on its behalf was not authorized to contract. As to the letter, defendant asserts that this was an offer of settlement. This is palpably not so. Defendant admitted its use of the crane and asserted the terms upon which it was used. Accepting those terms, plaintiff would be entitled to the sum admitted to be due. Settle order on notice. Concur—McGivern, P. J., Markewich, Kupferman, Steuer and Capozzoli, JJ.