Opinion
Argued October 8, 1959
Decided November 25, 1959
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, SAMUEL H. HOFSTADTER, J.
Daniel Levy and Jerrold M. Sonet for appellant.
Sidney Fox for respondent.
Donovan Leisure Newton Irvine for American Cyanamid Company, amicus curiae.
Even assuming that the law of New York, rather than that of Pennsylvania, controls the construction of the contracts here involved — and we have neither considered nor passed upon the matter — it is our conclusion that issues of fact exist which require a trial for their determination. It is enough to note that amongst such issues are these: (1) What did the parties intend by use of the typewritten phrase "Cyana Shrinkage Control"? (2) Did the defendant promise to treat the goods with "Cyana" finish and, if it did make such a promise, were the goods in fact so treated? (3) Is paragraph 9 of the contract, insofar as it prescribes a limitation of time for the filing of claims by the buyer, reasonable?
The judgment appealed from should be reversed and the defendant's motion for summary judgment denied, with costs in this court and in the Appellate Division.
Chief Judge CONWAY and Judges DESMOND, DYE, FULD, FROESSEL, VAN VOORHIS and BURKE concur.
Judgment reversed, with costs in this court and in the Appellate Division, and case remitted to Special Term for further proceedings in accordance with the opinion herein.