
    American Can Company, Appellant, v. U. S. Canning Corporation, Defendant, and Samuel Breiter & Co., Inc., Respondent.
    Supreme Court, Appellate Term, First Department,
    October 16, 1958.
    
      Kamen & Ostertag (Elliott A. Ferber and Ronald J. Moss of counsel), for appellant.
    
      Joseph Schwartsman for respondent.
   Per Curiam.

The learned court below was in error in concluding that the equipment lease was in fact a purchase agreement. There is no evidence that the rentals were to be considered as installments of purchase price even when the document headed ‘ ‘ Instalment Purchase ” is considered. Obviously this unsigned instrument is not in itself an agreement, as the court recognized. It does not support the intervening defendant’s contention that the equipment lease contemporaneously signed was other than what it purported to be. As the machine was merely leased the intervenor gained no rights by virtue of his mortgage. The judgment in his favor should be therefore reversed, with $30 costs, and judgment for possession of the machine awarded to plaintiff, with costs.

Hofstadter, J.

(dissenting). There is no sufficient ground to disturb the factual finding implicit in the result reached below. The evaluation of the record in its totality was for the trial court. As I view the matter, it is not within our competency to substitute our own. For, it is the function of the trial court to explore the facts. In the proper exercise of our limited power of review of the facts we may not retry the case. That an appellate court would have reached a different result on the facts, is no valid ground for discarding that reached below.

Stetter, J. P., and Aurelio, J., concur; Hoestadter, J., dissents in memorandum.

Judgment reversed, etc.  