Majority
p. 301Cities Service Oil Company, Successor by Merger to Cities Service Asphalt Products Co., Appellant, v. Saverio Soranno and Vincenza Soranno, Respondents. First Department, April 19, 1940.
George H. Cohn of counsel [Sydney H. Gleich with him on the brief; George H. Cohn, attorney], for the appellant.
J. J. Kramer of counsel [J. O. Kramer with him on the brief; Charles E. Healy, attorney], for the respondents.
We find no error in the court’s charge for the reason that the burden was upon the plaintiff to establish that under the contract it was entitled to recover the amount alleged to be due. The offset contained in the answer consisted of allegations that by the contract, under which the fuel oil was delivered, the defendant was entitled to a discount on the purchase price. Although these allegations of the answer are affirmative in form,
p. 302
they constitute, in fact, denials of the contract alleged by the plaintiff and which the plaintiff had the burden to establish.
The judgment, so far as appealed from, should be affirmed, with costs.
Present — Martin, P. J., O’Malley, Townley, Glennon and Untermyer, JJ.; O’Malley, J., dissents and votes to reverse and grant a new trial.
Judgment affirmed, with costs.