Fixel v. Marks

Appellate Division of the Supreme Court of New York

Fixel v. Marks

137 N.Y.S. 1120

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 8, 1912

StatusPublished

This text of 137 N.Y.S. 1120 (Fixel v. Marks) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fixel v. Marks, 137 N.Y.S. 1120 (N.Y. Ct. App. 1912).

Pincite

Opinion

BIJUR, J.

This. suit was brought by the plaintiff, purchaser, for damages caused by nondelivery by defendants of 3,734 pounds of mushrooms at the agreed price of 57% cents per pound during the month of October, 1911. The learned judge below awarded the plaintiff $350 damages, thus indicating that the market price during the month of delivery was approximately 67 cents. The testimony, however, does not, on the whole, sustain a finding that it was so high. The judgment must therefore be reversed, and a new trial ordered, with costs to appellant to abide the event, unless plaintiff will stipulate to accept $175, in which case the judgment will be reduced to that amount, and, as so modified, affirmed, without costs or the appeal to either party. All 'concur.

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BIJUR, J.

This. suit was brought by the plaintiff, purchaser, for damages caused by nondelivery by defendants of 3,734 pounds of mushrooms at the agreed price of 57% cents per pound during the month of October, 1911. The learned judge below awarded the plaintiff $350 damages, thus indicating that the market price during the month of delivery was approximately 67 cents. The testimony, however, does not, on the whole, sustain a finding that it was so high. The judgment must therefore be reversed, and a new trial ordered, with costs to appellant to abide the event, unless plaintiff will stipulate to accept $175, in which case the judgment will be reduced to that amount, and, as so modified, affirmed, without costs or the appeal to either party. All 'concur.

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Bluebook (online)

137 N.Y.S. 1120, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fixel-v-marks-nyappdiv-1912.