Phillips Petroleum Co. v. Premium Coal & Oil Co.

Order entered on July 9, 1962, which granted plaintiff’s motion for summary judgment, unanimously reversed, on the law, with $20 costs and disbursements to the appellant and the motion denied, with costs. An issue of fact is raised with respect to whether the mooring furnished was safe within the meaning of the contract. If in fact it was, then the plaintiff would not be entitled to recover. Furthermore, even if summary judgment were warranted on the question of liability it was *614improper on this motion for the court to fix the amount of damage. Whether the defendant took proper steps by way of mitigation presents issues to be tried. Concur — Rabin, J. P., Stevens, Eager, Bergan and Bastow, JJ.