
    Glick & Dolleck, Inc., Respondent, v. Tri-Pac Export Corp., Appellant.
    Argued April 18, 1968;
    decided July 2, 1968.
    
      
      Ira Rubin and Lester Sacks for appellant.
    I. The existence of a material issue of fact precludes the granting of summary judgment. (Sillman v. Twentieth Century-Fox Film Corp., 3 N Y 2d 395; Stone v. Goodson, 8 N Y 2d 8.) II. The issues of fact in contention are material. (Hills v. Melenbacher, 23 A D 2d 803; Frye v. State of New York, 192 Misc. 260; Feldberg v. Howard Fulton St., 20 A D 2d 555.) III. On motions for summary judgment the facts as propounded by the party against whom summary judgment is sought must be accepted by the court without entering into the area of the credibility of the parties. (Nathan v. Spector, 281 App. Div. 451; Currey v. MacKenzie, 239 N. Y. 267; First Trust & Deposit Co. v. Dent, 263 App. Div. 1058: DiDonna v. Sachs, 9 A D 2d 576.)
    
      Abraham J. Springer and Albert S. Krautheimer for respondent.
    I. Defendant-appellant’s papers in opposition present no triable issue of fact. (Barrett v. Jacobs, 255 N. Y. 520; Aber
      crombie & Fitch v. Colford, 123 Misc. 138; Bevelyn Realty Corp. v. Brooklyn Constr. Co., 140 Misc. 74; Israelson v. Rubin, 20 A D 2d 668,14 N Y 2d 887; Cohen v. Pannia, 7 A D 2d 886; Barnet v. Horowitz, 278 App. Div. 700; Muehlstein & Co. v. Airway Cleaners & Dryers, 17 Misc 2d 941.) II. Plaintiff-respondent’s motion for summary judgment was properly granted. (Di Sabato v. Soffes, 9 A D 2d 297; Stagg Tool & Die Corp. v. Weisman, 12 A D 2d 99; Dwan v. Massarene, 199 App. Div. 872; Strassburger v. Rosenheim, 234 App. Div. 544; Kramer v. Harris, 9 A D 2d 282; Liebmann v. Aldhous, 105 Misc. 728.)
   Jasen, J.

In this action to recover the sales price of Salty Dog ” scrubdenims sold by plaintiff to defendant, the Appellate Division has affirmed Special Term’s order granting summary judgment and the judgment entered thereon.

We are told that ‘ ‘ scrubdenim ’ ’ is ordinary denim fabric which is put through a scrubbing or brushing process so as to create a nap on the fabric. According to plaintiff’s supporting affidavit, defendant purchased the scrubdenims by orders of April 18, 1966 and May 11, 1966, aggregating $21,248.32. On the bottom of each invoice appeared the words “ am, risks on these goods whether held or shipped are assumed by purchaser All claims must be made within 5 days after receipt of goods.”

To grant summary judgment, it must cledrly appear that no material and triable issue of fact is presented. (Di Menna & Sons v. City of New York, 301 N. Y. 118.) This drastic remedy should not be granted where there is any doubt as to the existence of such issues, or where the issue is arguable (Barrett v. Jacobs, 255 N. Y. 520, 522.) The court may not weigh the credibility of the affiants on a motion for summary judgment unless it clearly appears that the issues are not genuine, but feigned. (Curry v. Mackenzie, 239 N. Y. 267, 269-270.)

The affidavits submitted by defendant present triable issues of fact. Defendant refused to pay for certain shipments of scrubdenim on the ground that portions of the fabric were so unevenly brushed that it could not be cut into garments. Defendant’s answer asserted breach of warranty as a defense to the action for the price. Concededly, the scrubdenims were not delivered to defendant, but, according to agreement, were shipped directly to its customers. Certain of them returned the fabric and defendant, in turn, returned it to plaintiff. This raises an issue as to whether the goods were merchantable.

Plaintiff seeks to obviate this issue by proof that the orders contained a provision that all claims must be made in five days and by conduct of defendant suggesting that its claim is an afterthought caused by a fall in the price of the scrubdenims. Defendant replies that the provision in the order is understood in the trade to refer only to quantities delivered, not to the quality of the fabric. This position is supported by the fact that defects in quality can often only be ascertained when the goods are ready to be cut.

An examination of the goods by defendant at which time an offer of partial payment was made is the inconsistent conduct advanced by plaintiff. However, this inspection was made after the goods had been returned and the offer was to pay for the goods which had not been returned. This offer to pay for the scrubdenims accepted by defendant’s customers was never increased and is consistent with defendant’s stand. On these facts a triable issue of the merchantability of the goods is presented.

Accordingly, the order appealed from should be reversed.

Dissenting memorandum.

The order of the Appellate Division should be affirmed on the following grounds: Defendant presented no evidentiary facts to establish its defense. Thus no evidentiary fact was asserted to establish the nonmerchantability of the merchandise, other than that merchandise accepted by plaintiff after return by defendant and for which it credited defendant. Instead there is only the conclusory statement of nonmerchantable deliveries without specification of buyers who returned them, or the time, place, or quantities involved. Consequently no issue of fact was raised.

Judges Burke, Scileppi and Bergan concur with Judge Jasen ; Chief Judge Fuld and Judges Keating and Breitel dissent and vote to affirm in a memorandum.

Order reversed, with costs in all courts, and matter remitted to Special Term for further proceedings in accordance with the opinion herein.  