J. Manes Co. v. Greenwood Mills, Inc.

Order, Supreme Court, New York County, entered May 1, 1979, denying plaintiff’s motion for summary judgment and defendant’s cross motion for summary judgment, unanimously affirmed, without costs. Defendant-respondent-appellant Greenwood Mills, Inc. (Greenwood), a textile manufacturer, sold certain unfinished (greige) fabrics to Mill Fabrics Corporation (Mill), a textile converter, on a "bill and hold” basis, that is, they were stored at Greenwood’s premises subject to the order of Mill. The sales contract provided that Greenwood retain a security interest in the goods to the extent of Mill’s indebtedness to it. Mill never paid Greenwood for these goods, but sold them to plaintiff-appellant-respondent J. Manes Có., Inc. (Manes) which paid Mill in full for them. Subsequently Mill became insolvent and Greenwood refused to release the goods to Manes, asserting its security interest and sold the fabrics to a third party in satisfaction of Mill’s indebtedness. Manes brought this action which sounds in quasi contract for money had and received, since its cause of action for tortious *558conversion was barred by the applicable three-year Statute of Limitations. Subsequently, Manes moved for summary judgment relying principally on Tanbro Fabrics Corp. v Deering Milliken (39 NY2d 632), and Greenwood cross-moved for the same relief. Special Term held, basically, that triable issues of fact exist, and we agree. The record indicates that there are questions concerning choice of law, unjust enrichment and whether the sale was made in the ordinary course of business within the meaning of the Uniform Commercial Code and the custom and practice of the industry, which have not been resolved, which are disputed and which involve underlying triable issues of fact whose resolution is necessary before they may be determined. Concur—Birns, J. P., Sandler, Sullivan, Bloom and Carro, JJ.