SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
May 20, 1968
CLARENCE D. DAVIS, INC., APPELLANT,
SAMUEL ADLER, INC., RESPONDENT
Herlihy, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Gibson, P. J.
Appeal from a judgment of the Supreme Court in favor of defendant, entered upon a decision, after trial by the court without a jury, in an action to recover damages in the amount of the purchase price paid by plaintiff to defendant for a quantity of cheese alleged to have been found unfit for human consumption. The product in question was one of several lots constituting defendant's stock of cheese in storage at a warehouse, sold by defendant to plaintiff on November 30, 1949; it being agreed that the cheese would be withdrawn during the month of December, 1949, to be paid for as withdrawn, and payment for any cheese remaining in storage at the end of that month to become due at that time. Plaintiff asserted that prior to the purchase it had inspected all of the several lots purchased except Lot 2122, the lot here involved, which it first inspected on February 1, 1950 and found so deteriorated as to be unmarketable. In its decision dismissing the complaint, the trial court properly "reached the conclusion that the plaintiff has not established its alleged cause of action by a fair preponderance of the evidence" and correctly held that there was "no evidence in the record to show that this lot of cheese in question, viz: #2122 was spoiled or in unsaleable condition prior to the date of sale, viz: November 30, 1949."
Judgment affirmed, with costs.
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