Opinion
April 26, 1965
In an action to recover the agreed price and reasonable value of goods sold and delivered, in which the defendant asserted a counterclaim to recover damages for breach of warranty of fitness for use, the defendant appeals from a judgment of the Supreme Court, Kings County, entered June 26, 1964 after a nonjury trial, upon the opinion-decision of a Special Referee, which in effect dismissed its counterclaim and awarded judgment in the plaintiff's favor on its complaint. Judgment reversed on the law and the facts and a new trial granted, with costs to the defendant to abide the event. In our opinion, there was sufficient proof to establish Milton Perloff's agency and authority to act for the plaintiff; or, at the very least, the proof was sufficient to establish such implied or apparent agency as would bind plaintiff and estop it from denying such agency. Hence, it was error to exclude the proffered testimony concerning conversations with said Perloff. In view of the issue as to Perloff's authority, we also believe the trial court should have granted defendant a continuance to produce Perloff as a witness, since his failure to appear, despite the service of a subpoena upon him, apparently caught the defendant by surprise. In any event, a new trial in the interests of justice is warranted because it is unclear on this record whether the trial court misapprehended the characteristics of the material in suit; and that is one of the basic issues in this case. As we are granting a new trial, it may be pertinent to note that we also believe that the defendant should have been permitted to show the circumstances leading up to the order in question and the receipt and use of the material. Ughetta, Acting P.J., Christ, Brennan, Hopkins and Benjamin, JJ., concur.