United States v. Michalinos Maritime & Commercial Co.

Owen McGivern, J.

The defendant moves for summary judgment in this action which arises from the sale by plaintiff and the purchase by the defendant of a war surplus Liberty ship pursuant to a written contract of sale. Counsel for the moving defendant in his affidavit (which is the only affidavit in support of the motion) asserts: “ The sole issue for determination in this action is whether defendant is indebted for ‘ desirable features ’ as the term is used in the Merchant Ship Sales Act. The principal issue for determination on this application is whether plaintiff does on its present pleading set forth a sufficient cause of action or whether it can prove a meritorious case.”

Heretofore, and on November 14, 1958, Mr. Justice Streit, in a succinct and well-reasoned opinion, sustained the validity of the complaint. (19 Misc 2d 732.) This disposed of the contention that the plaintiff has no cause of action. The movant now advances the decision of another learned Justice of this court, granting summary judgment to the defendant in a case similar to this one (United States of America v. Southern Steamships [Proprietary], Ltd., N. Y. L. J., July 23,1959, p. 4, col. 6). The nub of that holding appears in the following quoted portion therefrom: “If the plaintiff in an agreement refers to a

standard item for the purpose of comparison, upon which payments are to be made, and in effect no such standard item exists, then plaintiff cannot prevail.”

The learned Justice then found that: “the papers in opposition to the motion are inadequate to prevent the relief requested.”

Thus it appears that proof of the existence of a standard type of Liberty vessel was not presented by the plaintiff in that motion. Such a situation is not present here. The plaintiff, in opposition to the motion, submits the affidavit of the Chief of the Office of Ship Construction of the Maritime Administration and that of another naval architect holding the position of Chief, Cargo Handling Branch, Division of Ship Design, Office of Ship Construction and Repair of the Maritime Administration, both to the effect that there was and is a standard Liberty vessel of the type which was involved in the sale upon which this action was commenced. At the least, this presents a triable issue. Motion denied.