John E. Rosasco Creameries, Inc. v. Cohen , 1936 N.Y. App. Div. LEXIS 5069 ( 1936 )

Per Curiam.

The plaintiff, a shipper of milk, maintains this action against the defendants, milk dealers and distributors in New York city, to recover the agreed price of milk sold to the defendants between March 15 and April 1, 1936. In addition to denials of allegations of the complaint, the defendants assert two counterclaims, the first for damages for the breach by the plaintiff of an oral contract by which it agreed to sell and deliver to the defendants all the milk required in the normal course of the defendants’ business; the second, for a sum of money alleged to have been overpaid to the plaintiff on account of so much of the milk as was used by the defendants in the manufacture of cream and ice cream.

We have held (Rosasco Creameries, Inc., v. Cohen, 249 App. Div. 228, decided herewith) that upon the facts admitted by the pleadings the complaint must be dismissed and, therefore, it necessarily follows that the order must be reversed at least to the extent that it grants summary judgment in favor of the plaintiff upon the claim asserted in the complaint. We are further of opinion, however, that so much of the order as grants the plaintiff’s motion for summary judgment striking out the defendants’ counterclaims must also be reversed for the reason that the affidavits present issues of fact which can be decided only upon a trial.

On the first counterclaim the defendants’ affidavits set forth an agreement between the parties binding the plaintiff to sell and deliver to the defendants sufficient milk, not exceeding 10,500 cans per month, to meet their normal business requirements, and that the plaintiff’s failure to perform the contract made it necessary for the defendants to purchase milk elsewhere at higher prices. On the second counterclaim the affidavits submitted by the defendants, if true, would establish that milk used by them for the manufacture of ice cream and cream should be charged at the rate of $1.71 per forty-quart can, instead of $2.39 per can, the price to be paid for milk for drinking purposes. The defendants’ affidavits further allege that this arrangement entitles them to a credit of $3,800, and this is corroborated, to some extent at least, by the broker who negotiated the contract between the parties.

We have not considered whether the rights which the defendants have asserted in their counterclaims are unenforcible on account of the plaintiff’s failure to comply with the licensing requirements of section 257 of the Agriculture and Markets Law, because that question is not presented by the plaintiff’s reply (Civ. Prac. Act, § 242), and it consequently does not appear that the defendants dealt with the plaintiff with “ reason to believe ” that it was not licensed as provided by section 257.

The judgment and order should be reversed, with costs, and the motion denied.

Present—■ Martin, P. J., McAvoy, Untermyer, Dore and Cohn, JJ.