Opinion
May 28, 1937.
In an action to recover the purchase price of goods sold, order granting plaintiff's motion for summary judgment under rule 113 of the Rules of Civil Practice, and judgment entered thereon, reversed on the law and the facts, with ten dollars costs and disbursements, and motion denied. In our opinion the affirmative defenses pleaded in the answer are without merit, but there is an issue of fact as to whether the goods could readily be resold for a reasonable price. Without proof of that fact, the action is not maintainable under section 144 Pers. Prop., subdivision 3, of the Personal Property Law. There is also a variance between the plaintiff's pleading and proof. The complaint alleges an actual delivery of the goods, and the affidavits show that there was no such delivery. Hagarty, Davis, Johnston, Adel and Close, JJ., concur.