SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT
January 16, 1969
EAZOR EXPRESS INCORPORATED, APPELLANT,
SAM LANZA, DOING BUSINESS AS AUTOMATIC LINDSAY WATER CONDITIONERS OF MONROE COUNTY, RESPONDENT
Appeal from judgment and order of Monroe County Court dismissing complaint in action to recover value of merchandise delivered.
Goldman, J. P., Del Vecchio, Marsh, Witmer and Henry, JJ.
Memorandum: The proof established, or there were inferences reasonably to be drawn therefrom, that on October 12, 1964 plaintiff delivered to defendant Lanza merchandise shipped from Lindsay Company of St. Paul, Minnesota for which defendant was to pay $2,950.65 by picking up the bill of lading which Lindsay Company had sent to the Genesee Valley Union Trust Company for collection; that at the time plaintiff's truck driver delivered the merchandise he neglected to pick up the bill of lading but defendant did pay him the freight charges in the sum of $67.87; that about a week after delivery had been made plaintiff discovered that the driver had not picked up the bill of lading and its terminal manager called defendant who admitted he had received the merchandise, had paid the freight charges and promised to pick up the bill of lading, but plaintiff was never able to get the bill from defendant; that the bank never collected the sum of $2,950.65 from defendant and on November 25, 1964 it returned the bill of lading to Lindsay Company; that plaintiff thereafter became the owner and holder by the Lindsay Company's endorsement of this bill of lading (see Uniform Commercial Code, § 1-201, subds. , ; § 7-501, subd. ; § 7-504, subd. , 1 Hawkland, A Transactional Guide to the Uniform Commercial Code , pp. 357-358). Upon this state of the record, it was error to dismiss the complaint at the close of the plaintiff's proof.
Judgment and order unanimously reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event.
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