Giordano v. Nizzari

Appellate Terms of the Supreme Court of New York

Giordano v. Nizzari

115 N.Y.S. 719

CourtAppellate Terms of the Supreme Court of New York

DecidedMarch 17, 1909

StatusPublished

This text of 115 N.Y.S. 719 (Giordano v. Nizzari) 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

Giordano v. Nizzari, 115 N.Y.S. 719 (N.Y. Ct. App. 1909).

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Opinions

MacLEAN, J.

In his verified complaint the plaintiff declared that on or about April 6, 1908, he sold and delivered a horse and wagon to the defendant at the agreed price of $215; that no part thereof has been paid, except the sum of $150; and that there is now due and owing the sum of $65. Among other defenses in his verified answer the defendant counterclaimed to recover the aforesaid sum paid by him, and likewise the cost of the keep of the horse, basing his claim upon an express warranty at the time of the sale, its breach, and his offer therefor to return.

The trial justice erroneously rendered judgment in favor of the defendant for the sum of $150 and $15 costs, because it is undisputed that the property in question was sold and delivered to, and taken away and kept by, the defendant, who from eight to ten days thereafter offered to return the property, claiming that the same was not as represented. Title had passed, and the defendant 'was not acting [720]*720■within his right; for, be the law otherwhere otherwise,* in this state, '“if the sale is of existing ánd specific goods, with or without warranty. -of quality, the title at once passes to the purchaser, and, where there is an express warranty, it is, if untrue, at once broken, and the vendor becomes liable in damages, but the purchaser cannot for that reason -either refuse to accept the goods or return them.” Brigg v. Hilton, 99 N. Y. 517, 529, 3 N. E. 51, 52 Am. Rep. 63, and cited as the rule in Fairbank Canning Co. v. Metzger, 118 N. Y. 260, 269, 23 N. E. 372, 16 Am. St. Rep. 753.

If it be contended that the transaction between these parties was what is denominated a “sale or return”—that is, a bargain and sale upon a condition subsequent, title passing, subject to the right to rescind and return (Hunt v. Wyman, 100 Mass. 198, 200)—and that '.there was evidence herein wherefrom the trial justice might find that such was the transaction in question, his finding would still be improper, because such a transaction was not alleged as claim, nor was motion made to conform the pleadings to the proof. It follows that the judgment should be reversed, and the cause remanded for a new trial.

Judgment reversed, and new trial ordered, with costs to appellant to •abide the event.

GILDERSLEEVE, P. J., concurs.

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MacLEAN, J.

In his verified complaint the plaintiff declared that on or about April 6, 1908, he sold and delivered a horse and wagon to the defendant at the agreed price of $215; that no part thereof has been paid, except the sum of $150; and that there is now due and owing the sum of $65. Among other defenses in his verified answer the defendant counterclaimed to recover the aforesaid sum paid by him, and likewise the cost of the keep of the horse, basing his claim upon an express warranty at the time of the sale, its breach, and his offer therefor to return.

The trial justice erroneously rendered judgment in favor of the defendant for the sum of $150 and $15 costs, because it is undisputed that the property in question was sold and delivered to, and taken away and kept by, the defendant, who from eight to ten days thereafter offered to return the property, claiming that the same was not as represented. Title had passed, and the defendant 'was not acting [720]*720■within his right; for, be the law otherwhere otherwise,* in this state, '“if the sale is of existing ánd specific goods, with or without warranty. -of quality, the title at once passes to the purchaser, and, where there is an express warranty, it is, if untrue, at once broken, and the vendor becomes liable in damages, but the purchaser cannot for that reason -either refuse to accept the goods or return them.” Brigg v. Hilton, 99 N. Y. 517, 529, 3 N. E. 51, 52 Am. Rep. 63, and cited as the rule in Fairbank Canning Co. v. Metzger, 118 N. Y. 260, 269, 23 N. E. 372, 16 Am. St. Rep. 753.

If it be contended that the transaction between these parties was what is denominated a “sale or return”—that is, a bargain and sale upon a condition subsequent, title passing, subject to the right to rescind and return (Hunt v. Wyman, 100 Mass. 198, 200)—and that '.there was evidence herein wherefrom the trial justice might find that such was the transaction in question, his finding would still be improper, because such a transaction was not alleged as claim, nor was motion made to conform the pleadings to the proof. It follows that the judgment should be reversed, and the cause remanded for a new trial.

Judgment reversed, and new trial ordered, with costs to appellant to •abide the event.

GILDERSLEEVE, P. J., concurs.

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115 N.Y.S. 719, Counsel Stack Legal Research, https://law.counselstack.com/opinion/giordano-v-nizzari-nyappterm-1909.

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