Berlanti v. Solvay Process Co. , 84 N.Y.S.2d 384 ( 1948 )

In an action to recover damages in connection with the shipping of coal by plaintiffs from a mine to appellant’s plant, acceptance of which was refused by appellant, it is claimed that plaintiffs fulfilled an order authorized by appellant through two successive intermediary agents. Order denying appellant’s motion for summary judgment reversed on the law and the facts, with $10 costs and disbursements, and the motion granted, without costs. Plaintiffs’ submission in opposition to the motion fails to establish the existence of a triable issue on the claim that one Foster was appellant’s agent for the purchase of coal. In no view of the evidentiary showing can it be held that such issue exists. On the contrary, it appears affirmatively that Foster was a seller of coal to the appellant, and that he attempted to fulfill his undertaking by ordering coal from one J. W. Laing, who in turn ordered it from plaintiffs. Carswell, Acting P. J., Johnston, Adel, Sneed and Wenzel, JJ., concur.