Friedman v. Kamener , 197 N.Y.S. 316 ( 1922 )

Finch, J.:

The complaint alleges the sale of certain machines to the defendant at the agreed price of $3,500, of which amount the defendant paid $500 and agreed to pay the balance on or before September 13, 1922, at which time the machines were to be delivered at plaintiffs’ place of business, but that, although plaintiffs were ready to deliver the machines, defendant refused to accept said machines when the time for delivery arrived, or to pay the balance of the purchase price, for which amount, and storage charges, the action is brought. The answer denied that plaintiffs were ready and willing to deliver the machines, and, by way of defense and as a counterclaim, alleged that plaintiffs had sold the machines to another purchaser and demanded the return of the $500 paid by defendant.

From the affidavits submitted, it appears that there is an issue of fact as to which party to the action was the defaulting party. The defendant alleges that he demanded the delivery of the machines and offered to pay the purchase price, but that the plaintiffs refused, as the machines had been sold to a third person. When such an issue is raised by the facts set forth in the affidavits, the court cannot say that the defense is a sham. (Dwan v. Massarene, 199 App. Div. 872.)

It follows that the judgment and order appealed from should be reversed, with costs, and the motion denied, with ten dollars costs, and the appeal from the order denying reargument dismissed.

Clarke, P. J., Dowling, Merrell and Greenbatjm, JJ., concur.

Judgment and order reversed, with costs, and motion denied, with ten dollars costs, and appeal from order denying reargument dismissed.