Pepper v. Penn-Dixie Cement Corp., PENN-DIXIE

• Decision Date: 20 July 1970
• Docket Number: PENN-DIXIE
• Citation: 35 A.D.2d 583,313 N.Y.S.2d 616
• Parties: Frank PEPPER, Appellant, v.CEMENT CORPORATION, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 616

313 N.Y.S.2d 616

35 A.D.2d 583

Frank PEPPER, Appellant, v. PENN-DIXIE CEMENT CORPORATION, Respondent.

Supreme Court, Appellate Division, Second Department.

July 20, 1970.

Bandler, Goldstein & Kagan, Alan E. Bandler, New York City, for plaintiff-appellant.

Windels, Merritt & Ingraham, New York City, for defendant-respondent; Francis E. Koch, New York City, of counsel.

Before CHRIST, P.J., and RABIN, MUNDER, LATHAM and KLEINFELD, JJ.

MEMORANDUM BY THE COURT.

In an action to recover for services rendered in procuring the sale of defendant's manufacturing facilities, plaintiff appeals (1) from an order of the Supreme Court, Queens County, dated May 29, 1968, which granted defendant's motion for a directed verdict at the end of a jury trial, (2) from a judgment of said court entered June 7, 1968 in defendant's favor upon said order, and (3) from so much of an order of said court dated September 16, 1968 as, upon reargument, adhered to the original decision granting defendant's said motion for a directed verdict.

Appeal from order of May 29, 1968 dismissed, without costs, as academic.

Order of September 16, 1968 reversed insofar as appealed from and judgment reversed, on the law, and new trial granted, with costs to abide the event. The questions of fact have not been considered.

In our opinion, the issue of whether the sale of the property in question was consummated as a result of plaintiff's efforts presents questions of fact which must be left to a jury. All the witnesses who testified for defendant may be deemed to have been interested in some degree in the outcome of the action. Plaintiff was entitled to have their credibility evaluated by the trier of the facts.