Globe Elevator Co. v. American Molasses Co. — 202 A.D. 824

Majority

p. 824

Fourth Department,

June, 1922.

Globe Elevator Company, Appellant, v. The American Molasses Company of New York, Respondent.

Headnote

Sales — action against seller for failure to deliver — complaint supplemented by bill of particulars and opening statement of counsel makes out cause of action—■ cannot be said as matter of law that reasonable time to deliver had not expired —■ plaintiff not bound to fix specific time for delivery.

Appeal from a final judgment of the Supreme Court, entered in the Erie county clerk’s office on the 24th day of January, 1922, and also from an order entered on the 19th day of January, 1922.

We are of opinion that the complaint as supplemented by the bill of particulars and opening statement of counsel makes out a cause of action. We decline to pass upon the effect of the various letters and telegrams set forth in the bill of particulars without knowing their contents, or upon the oral conversations not set forth. But assuming that the defendant had a reasonable time to deliver the molasses after the seventeenth of August, we think it cannot be held as a matter of law that such reasonable time had not expired before the commencement of the action. Nor was it necessary, in making the various demands, for the plaintiff to fix a specific time for the delivery of the molasses. (Neverfail Lighter Co., Inc., v. Blum, 201 App. Div. 153 .) The judgment and order should be reversed and a new trial ordered, with costs to the appellant to abide the event. All concur. Judgment and order reversed and new trial granted, with costs to appellant to abide event.