Cohen v. Kaback

Appellate Terms of the Supreme Court of New York

Cohen v. Kaback

153 N.Y.S. 5

CourtAppellate Terms of the Supreme Court of New York

DecidedMay 11, 1915

StatusPublished

This text of 153 N.Y.S. 5 (Cohen v. Kaback) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cohen v. Kaback, 153 N.Y.S. 5 (N.Y. Ct. App. 1915).

Pincite

Opinion

LEHMAN, J.

The plaintiffs delivered to the defendant some wool-

en goods on August 19th. The defendant agreed to dye the goods, and, according to plaintiffs’ testimony, to return them within 20 days. For some reason the work of the defendant was delayed, and the plaintiffs thereupon, on September 28th, or 40 days after the goods were delivered, began this action. Thereafter the defendant tendered the goods, but the plaintiffs refused to accept them, and bought other goods. There is no evidence that the goods had deteriorated in value between the date on which they should have been delivered and the date on which they were delivered. The trial justice, however, gave judgment for the sum of. $150.

[1-4] The judgment is clearly erroneous unless proper measure of damages in this case is the full value of the goods delivered to the defendants. The complaint sets forth two causes. of action, one for breach of contract and one for conversion. While there are undoubtedly cases where a failure to deliver goods may amount to a conversion, I do not think that the present case presents such features. The delay is not shown to have been willful, or under such circumstances as would amount to a claim of ownership in the defendant or any denial of ownership or right to possession in the plaintiffs. In any event, at the trial it was apparently agreed that the action was one for breach of contract, and upon this appeal we must consider it in that light. If the claim was for breach of contract, then clearly the measure of damages is the change in the value of the goods due to the delay. The judgment in an action for breach of contract does not result in any .change of ownership, and the plaintiff is therefore not entitled to recover the full value. The plaintiffs by bringing an action within 40 days after delivery, at a time when there was no actual refusal to deliver or return the goods, cannot preclude the defendants from thereafter returning the goods, or impose upon them a liability for their full value.

Judgment should be reversed, and new trial ordered, with costs to appellant to abide the event. All concur.

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LEHMAN, J.

The plaintiffs delivered to the defendant some wool-

en goods on August 19th. The defendant agreed to dye the goods, and, according to plaintiffs’ testimony, to return them within 20 days. For some reason the work of the defendant was delayed, and the plaintiffs thereupon, on September 28th, or 40 days after the goods were delivered, began this action. Thereafter the defendant tendered the goods, but the plaintiffs refused to accept them, and bought other goods. There is no evidence that the goods had deteriorated in value between the date on which they should have been delivered and the date on which they were delivered. The trial justice, however, gave judgment for the sum of. $150.

[1-4] The judgment is clearly erroneous unless proper measure of damages in this case is the full value of the goods delivered to the defendants. The complaint sets forth two causes. of action, one for breach of contract and one for conversion. While there are undoubtedly cases where a failure to deliver goods may amount to a conversion, I do not think that the present case presents such features. The delay is not shown to have been willful, or under such circumstances as would amount to a claim of ownership in the defendant or any denial of ownership or right to possession in the plaintiffs. In any event, at the trial it was apparently agreed that the action was one for breach of contract, and upon this appeal we must consider it in that light. If the claim was for breach of contract, then clearly the measure of damages is the change in the value of the goods due to the delay. The judgment in an action for breach of contract does not result in any .change of ownership, and the plaintiff is therefore not entitled to recover the full value. The plaintiffs by bringing an action within 40 days after delivery, at a time when there was no actual refusal to deliver or return the goods, cannot preclude the defendants from thereafter returning the goods, or impose upon them a liability for their full value.

Judgment should be reversed, and new trial ordered, with costs to appellant to abide the event. All concur.

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Bluebook (online)

153 N.Y.S. 5, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cohen-v-kaback-nyappterm-1915.