Kovitz v. National Accessories Stores, Inc.

254 A.D. 804, 4 N.Y.S.2d 234, 1938 N.Y. App. Div. LEXIS 7674

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 13, 1938
• Status: Published

Opinion

Defendant, National Accessories Stores, Inc., has appealed from a judgment, based on the verdict of a jury, in plaintiff’s favor in the sum of $2,094.25 entered in the office of the clerk of the county of Albany on November 3, 1937. Defendant is the owner of a store in Albany in which it sells, among other things, bicycles, bicycle parts and accessories. On May 16, 1936 plaintiff, an infant, purchased a bicycle from defendant. On July 11, 1936, while the infant was riding the bicycle the shaft or spindle of the pedal broke and as a result plaintiff was injured. Through his guardian he brought an action against both defendants on the theory of a breach of warranty in the sale of the bicycle. On plaintiff’s motion the action was discontinued as to defendant Homer P. Snyder Manufacturing Company, Inc. The jury rendered a verdict in favor of plaintiff and against the present defendant for the sum of $4,500. The trial judge set this verdict aside unless plaintiff should stipulate to accept $2,000, in which event the motion was denied. Plaintiff filed such a stipulation. In its brief defendant makes this concession, “ we concede that the seller [defendant] knew by implication that the bicycle was to be used to ride upon.” The evidence indicates that the defendant assembled the parts comprising the bicycle. There- is evidence oh which the jury was justified in making a finding that the bicycle was improperly assembled. The verdict is sustained by the evidence. Judgment affirmed, with costs. Hill, P. J., Crapser and Bliss, JJ., concur; Rhodes and Heffernan, JJ., dissent, and vote to reverse the order reducing the verdict from $4,500 to $2,000 and to reinstate the jury’s verdict, and as thus modified, to affirm the judgment.