Kubersky v. Sohon

143 N.Y.S. 1062, 1913 N.Y. App. Div. LEXIS 7465

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 13, 1913
• Status: Published

Opinion

SEABURY, J.

Plaintiff sues to recover damages for breach of contract. Part of the goods which the plaintiff sold to the defendant was received by the defendant, and it is conceded that for these goods the defendant is indebted to the plaintiff in the sum of $3.75. The balance of the goods, which the plaintiff claims the defendant ordered and refused to accept, was proven not to conform to the sample according to which they were sold. The court should therefore have awarded judgment for the plaintiff for $3.75.

The court below, however, not only awarded judgment for the plaintiff for $3.75, but provided in the judgment that the “defendant is entitled to the belts now in the possession of [the express] company.” The court had no authority to provide as to the ownership of the belts, and if the plaintiff was not entitled to recover from the defendant the damages alleged to have been sustained by the failure of the defendant to accept the goods, it follows as a matter of course that the plaintiff was entitled to receive back from the express company the goods which the plaintiff attempted to deliver to* the defendant.

•Judgment modified, by striking out the words “defendant is entitled to the belts now in the possession of company,” and, as modified, affirmed, with $10 costs to appellant. All concur.