Geographia Map Co. v. American News Co.

Order entered on December 13, 1961 granting plaintiffs’ motion for summary judgment on the first cause of action, and the judgment entered thereon on December 27,1961, unanimously reversed on the law, without costs, and the motion for summary judgment denied. In the first cause of action, plaintiffs, who are publishers of various periodicals, seek the recovery of $104,889 as damages for failure of defendant, a wholesale distributor of the magazines, to return or account for undisposed copies. The affidavits submitted by both sides are somewhat vague and obscure. However, plaintiffs rely substantially upon a claimed arrangement with defendant whereby all returns were to be forwarded to two named companies which were to make an independent count of the returns. The written contracts between the parties contain no provisions regarding such an arrangement. Defendant asserts that there was an entirely different method for taking care of the returns and denies the existence of any arrangement such as the plaintiffs aver. Apart from the triable issue posed by the conflicting affidavits as to the alleged arrangement, there are issues, among others, as to the accuracy of plaintiffs’ analysis of the claimed shortage, the alleged failure of plaintiffs to comply with the conditions precedent in the written contracts, and the practice of the parties *784 in dealing with returns. Under the circumstances, the existence of the triable issues precluded the granting of summary judgment. Concur — Botein, P. J., Breitel, Valente, Stevens and Steuer, JJ.