Jarach v. Ocean Carriers Corp. 9 A.D.2d 646

Order denying plaintiff’s motion for summary judgment unanimously affirmed, on the law, with costs to abide the event. Since the writings show that defendant’s agreement was made with and required payment to plaintiff, plaintiff may maintain this action in his own name even though he may be merely an agent for collection (Civ. Prac. Act, § 210; Gonsiderant v. Brisbane, 22 N. V. 389; 2 CarmodyWait, p. 548 et seq.). Issues of fact exist, however, with respect to the terms of agreement. The letter dated December 4, 1958, states that the agreement set forth therein shall be cancelled unless the ship has commenced loading by December 16. Defendant’s further agreement to pay plaintiff an additional $15,000, embodied in the letter dated November 28, 1958, is claimed to be conditioned upon the amendment of the letter of credit to provide for 30% payment upon presentation of master on board bills of lading. The agreement is not so clear in that respect as to permit determination of the issue on this record as a matter of law. Since these issues are sufficient to require trial, it is not necessary to reach the other question raised by defendant, namely, that there was a total substitution of the earlier by the later agreement. Concur — Breitel, J. P., Rabin, M. M. Frank, Valente and Stevens, JJ.