Cambridge Society v. Elliot

50 Misc. 159

Opinion

O'Gorman, J.

The defendant agreed to buy a book at a stipulated price, to be paid in installments, the title to remain in the vendor until the payment of the last installment. The following day the defendant, in writing, cancelled the order, and refused to accept the book when the same was tendered. This action was brought to recover the contract price and the judgment for the plaintiff is; criticized on the ground that, the title not having been transferred to the buyer, the seller’s sole remedy is an action for damages representing the difference between the contract price and the market value. National Cash Reg. Co. v. Schmidt, 48 App. Div. 473, is cited as an authority in support of this proposition. But this court in Cash Register v. Zinnio, 39 Misc. Rep. 311, held, in a similar case, that an action might be brought for the contract price and the Appellate Division in the Third Department in Gray v. Booth, 64 App. Div. 231, reached the same conclusion and refused to follow National Cash v. Schmidt, supra.

The judgment should be affirmed, with costs.

Scott and Newburger, JJ., concur.

Judgment affirmed, with costs.