Henry Moss & Co. v. Trico Products Corp.

Judgment reversed upon the law and the facts and a new trial granted, cests to abide the- event. The trial court erred in passing upon the [670] questions of fact involved herein upon the theory that the evidence adduced by defendant as to the number of plates actually received by it in Buffalo was not competent evidence of the number of plates actually delivered by plaintiff to the carrier. That evidence was competent and should have been considered by the trial court in passing upon the issues of fact as to the actual number of plates manufactured and delivered by plaintiff. (Pierson v. Crooks, 115 N. Y. 539.) In that ease the issue of quality of the goods as distinguished from quantity was involved, which fact makes no difference in principle in the rule. (Oil Co. v. Van Etten, 107 U. S. 325. The doctrine of Lopez v. Isaacs, Inc. (210 App. Div. 601, 603) should be applied to the findings of fact in this ease in so far as it is applicable to such findings with respect to any shipment or shipments. Lazansky, P. J., Young, Hagarty, Seeger and Carswell, JJ., concur.