Tassi v. Chevrolet Motor Co. of New York, Inc. , 216 A.D. 727 ( 1926 )

Kelly, P. J.,

dissents and votes to affirm the judgment upon the ground that the contract gave to defendant the right to purchase “ not to exceed ” a given quantity of lenses, to be delivered as ordered by defendant and paid for at the rate specified in the contract. The defendant has paid for all the lenses ordered and delivered. I cannot find any obligation on defendant to take the maximum quantity specified. (Chicago & G. E. R. R. Co. v. Dane, 43 N. Y. 240.) The learned trial justice denied a motion to dismiss the complaint. If there is any ambiguity about the agreement of the parties and if we are to resort to the other clauses of the contract to ascertain their intention, we find that at the close of the case both parties moved for the direction of a verdict and the learned trial justice directed a verdict for the defendant. If there was any question of fact in the case, I think the evidence justified the direction of the verdict.