Altschul v. Koven

94 N.Y.S. 558

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 22, 1905
• Status: Published

Opinion

PER CURIAM.

So far as concerns the money paid for the first set of covers, the plaintiff should not be permitted to recover, because he voluntarily paid the balance due on them, less the agreed deduction, after he had, as he says, discovered that they would not answer his purpose. As to the amount paid for the second set, there is some evidence that the order was to furnish covers of a certain kind and weight, that the defendants undertook to do this, and that they failed. If the action had been for the price, the evidence would have justified a judgment for the person who had ordered the work, and the same evidence justifies a recovery of so much of the price as was paid in advance. The question whether the so-called model was a true model is unimportant, since the defendants had an actual, full-sized wagon furnished them to fit the covers upon. Only $30 was apparently paid on the second set, and the judgment should be reduced to that sum, with costs in the court below, and, as modified, affirmed, without costs in this court.