Sher v. Centrotex, Ltd. 281 A.D. 1014

The writing of June 3, 1950, although labeled “ Confirmation of Order” was in reality a counteroffer as to the remaining 30,000 yards, which called for some affirmative act of acceptance on the part of the plaintiff before it could materialize into a binding contract. Accordingly, the order is modified by granting judgment in favor of the defendant, dismissing so much of the complaint as seeks damages for the nondelivery of the goods covered by the June 3d writing, and otherwise affirmed, with costs to the defendant. Present — Peck, P. J., Glennon, Cohn, Callahan and Bergan, JJ.; Cohn, J., dissents and votes to affirm. Settle order on notice. [See 282 App. Div. 760.]