Commercial Factors Corp. v. M. & M. Hat Co. — 251 A.D. 258

Majority

p. 258

Commercial Factors Corporation, Respondent, v. M. & M. Hat Co., Inc., Appellant.

First Department,

May 28, 1937.

Lawrence Mirken of counsel [Abraham J. Dere with him on the brief], for the appellant.

Charles A. Houston of counsel [Aaron Rosen and E. Robert Marks with him on the brief; Otterbourg, Steindler & Houston, attorneys], for the respondent.

There was sufficient evidence to present an issue of fact with respect to the authority of the salesman Rafelson (1) to make the warranties in the first instance, and (2) to agree to the alleged adjustment with the defendant after the latter’s protest. The fact that after the alleged adjustment certain of the goods were taken back by plaintiff’s assignor and a credit allowed, tends to support the defendant’s claim of authority in Rafelson, or at' least a ratification of his acts, by plaintiff’s assignor. It was error, therefore, to direct a verdict in favor of the plaintiff. The issues raised by the defenses and counterclaims should have been submitted to the jury.

The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

Present — Martin, P. J., O’Malley, Untermyer, Dore and Cohn, JJ.; Dore and Cohn, JJ., dissent.

Judgment reversed and a new trial ordered, with costs to the appellant to abide the event.