Thomasian v. Esso Standard Oil Co.

In an action by an owner of real property to recover damages claimed to have arisen from a failure to deliver oil in accordance with an alleged contract for automatic delivery, the appeal is from a judgment of the City Court of Mount Vernon entered on a jury verdict in favor of the property owner. Judgment reversed and a new trial ordered, with costs to abide the event. There was no evidence on behalf of respondent as to what an oil burner service man, called by the steamfitter, engaged by respondent, found on December 27, 1955. From appellant’s evidence it appeared that there were 388 gallons of oil in the tank before the delivery of December 28, 1955. Under the circumstances it is our opinion that the finding implicit in the verdict that the oil burner did not function because of lack of oil is against the weight of the evidence. Wenzel, Acting P. J., Beldock, Murphy, Ughetta and Kleinfeld, JJ., concur.