Majority
p. 733Carmela Ammirati et al., as Administratrices of the Estate of John Durso, Deceased, Respondents, v. Suburban Fuel Oil Service, Inc., et al., Appellants, Impleaded with Others. Argued October 26, 1942; decided December 3, 1942.
p. 734The following questions were certified: “ (1) May the contract, Exhibit A annexed to the complaint, be interpreted and construed on its face so as to place upon Webster Coal & Oil Co., Inc. the obligation to account to the plaintiffs for moneys received on sales after January 6, 1939 of oil to customers listed on Schedule B in the amount of $5,096.80 or any amount, if such customers old accounts were not valid and enforceable and actually ‘ due and payable ’ to Webster on or before January 10, 1939? “ (2) Does paragraph (1) of the judgment, printed in folios 223-228 of the record on appeal, adjudicate issues actually tried and decided according to the statutes of the State of New York, and the spirit and intent of the due process clausés of the Constitution of the State of New York, and the Constitution of the United States? ” Upon appeal the appellants argued that certain provisions of the judgment adjudicated issues not actually tried.
J. Henry Esser and Milton W. Levy for Webster Coal & Oil Co., Inc., et al., appellants.
Raymond Caverly, Herbert F. Dimond and Bernard G. Barton for Fidelity and Casualty Company of New York, appellant.
Henry H. Silverman and Nathaniel L. Sills for respondents.
p. 735
Order affirmed, with costs; no opinion. Questions certified answered in the affirmative.
Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ.