
    D. & S. Chemical Corporation, Appellant-Respondent, v. N. V. Nederlandsch Amerikaansche Stoomvaart Maatschappij, Respondent-Appellant.
    Supreme Court, Appellate Term, First Department,
    February 14, 1957.
    
      
      Albert T. Scharps for appellant-respondent.
    
      Richard W. Palmer and Gerard Harrington, Jr., for respondent-appellant.
   Per Curiam.

The decision of the trial court in respect of the claims of the opposing parties is amply supported by the record with the exception of the finding in favor of plaintiff on its second cause of action, which is based upon a claim of discoloration and contamination of the material.

Plaintiff failed to prove that the damage, first discovered in Wisconsin, occurred while its goods were in defendant’s custody. On the contrary, a surveyor representing plaintiff’s insurance carrier found the cargo to he stored in a covered pier in New York and observed no contamination or staining. Moreover, while plaintiff took other exceptions after the material was inspected, it took no exception for staining or contamination when it accepted delivery in New York, and upon delivery by plaintiff to Erie, Railroad for shipment of the goods to the ultimate user, Erie issued a bill of lading without exception taken as to staining or apparent contamination, although certain other exceptions were noted.

Consequently there was no warrant for an award in favor of . plaintiff on the cause of action as aforestated, and the judgment should be modified to direct dismissal thereof on the merits.

The judgment should be modified by reversing the award to plaintiff in the sum of $664.19 on its second cause of action (as reduced by an offset of $400 in favor of defendant) and judgment directed dismissing said second cause of action on the merits, and as modified affirmed, with $25 costs to defendant, thereby entitling defendant to the entry of judgment in its favor for $197.19 ($252.50 on its freight counterclaim as offset by $49.25 plus $6.06 in favor of plaintiff) with costs.

Hecht, Aurelio and Tilzer, JJ., concur.

Judgment modified, etc.  