Cassidy v. Spingarn

32 Misc. 752, 65 N.Y.S. 798

• Court: City of New York Municipal Court
• Decided: July 15, 1900
• Status: Published

Opinion

Conlan, J.

This action was brought upon an alleged contract for the purchase of seventeen bales of a certain brand of tobacco, of which two were received and paid for.

It is claimed by the plaintiffs that they had an option on the balance of fifteen bales for one week, which they exercised within the period, but the defendant failed to comply therewith.

The defense is that two bales were purchased, and that an option of two days was given on the balance, which was not exercised.

The charge is somewhat voluminous and covered the whole case, and, we think, very fairly submitted the questions involved for the consideration of the jury.

Upon the questions of the contract itself there was, as we have already seen, a conflict, so also was there a dispute as to the amount of damages recoverable thereunder, but these precise questions went to the jury without any objection other than may be inferred from the defendant’s motion to dismiss the complaint; however, no exception was taken to the charge or to any portion thereof, so that the form of submission must have been entirely satisfactory.

That the motion to dismiss was properly denied is evident, because of the serious conflict of evidence, and because there was evidence sufficient to entitle the plaintiffs to go to the jury upon the question of the contract and the damages which might flow from its breach.

We have -carefully examined the record for any errors which might have been committed upon the trial calling for our interference with the determination there had, and we are not able to find anything which calls for such interference on this appeal.

Judgment and order appealed from must, therefore, be affirmed, with costs.

Hascall and Schuchman, JJ., concur.

Judgment and order affirmed, with costs.