SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
November 3, 1975
A. M. KNITWEAR CORP., RESPONDENT,
ALL AMERICA EXPORT-IMPORT CORP., APPELLANT. (AND A THIRD-PARTY ACTION.)
In an action inter aliato recover for goods sold and delivered, a quantity of polyester yarn, defendant appeals from (1) an order of the Supreme Court, Kings County, dated December 9, 1974, which, inter alia, (a) granted plaintiff's motion for summary judgment and (b) denied defendant's cross motion for summary judgment and (2) the judgment of the same court, entered December 24, 1974, upon the said order.
Rabin, Acting P. J., Martuscello, Latham, Margett and Munder, JJ., concur.
In our opinion, there was neither physical delivery of the trailer which contained the yarn to the carrier in compliance with the purchase agreement nor delivery within the meaning of subdivision (2) of section 2-401 and section 2-509 (subd , par [a]) of the Uniform Commercial Code. Hence, title to and responsibility for the yarn remained with plaintiff (see Avisun Corp. v Mercer Motor Frgt., 37 A.D.2d 517).
Order and judgment reversed, on the law, with $20 costs and disbursements; plaintiff's motion for summary judgment is denied and defendant's cross motion is granted.
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