Keep v. Horner

26 Misc. 844, 55 N.Y.S. 437

• Court: City of New York Municipal Court
• Decided: January 15, 1899
• Status: Published

Opinion

O’Dwyer, J.

The contemplated purchases were actually made. Miss Francis selected and finally approved and accepted the furniture. It was set apart for her. She ordered its prompt delivery on Friday, which the defendants promised, and she agreed with the defendants on the terms of payment, all of which appears by undisputed evidence.

These facts constitute a complete conditional sale and furnish all its elements.

The plaintiff having, in the words of his own complaint, deposited the money in suit “ to be applied to the payment of any purchases ” made by Miss Francis, and she having made such purchases, the plaintiff cannot recover.

It follows that the verdict upon which the judgment is appealed from is founded, was against the law and evidence.

Judgment and order appealed from reversed and a new trial ordered, with costs to the appellants to abide the event.

Olcott, J., concurs.

Judgment and order reversed, and new trial ordered, with costs to appellants to abide event.