Levy v. Redfern

Appellate Terms of the Supreme Court of New York

Levy v. Redfern

52 Misc. 575, 102 N.Y.S. 494

CourtAppellate Terms of the Supreme Court of New York

DecidedJanuary 15, 1907

StatusPublished

This text of 52 Misc. 575 (Levy v. Redfern) 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

Levy v. Redfern, 52 Misc. 575, 102 N.Y.S. 494 (N.Y. Ct. App. 1907).

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Per Curiam.

This action was brought to recover the value of certain goods sold to the defendant by the plaintiff’s assignor. Among the articles sold were a screen, lamp stand and shade at the agreed price of $179. The answer sets up that plaintiff’s assignor and the defendant entered into an agreement under the terms of which there were to be delivered to the defendant in Brooklyn, N. Y., the aforesaid articles “ in perfect conditionthat the lamp stand delivered was not the one purchased and the screen was not in “ perfect condition.” The defendant also set up a counterclaim for damages by reason of the defective condition of certain other goods purchased by him of plaintiff’s assignor and asked judgment for $125 against plaintiff for that amount. The justice dismissed the complaint and rendered judgment in favor of the defendant upon his counterclaim [576]*576for $95. The giving of the judgment against the plaintiff is conceded to have been error, and the defendant consents that the judgment be modified by striking out the amount of recovery and rendering judgment in favor of the defendant upon the merits. The dismissal of the complaint was, however, clearly error. The sale was made to the defendant in March, 1905, and the goods were to be delivered to him as before stated in Brooklyn. He received them shortly after, retained them and, so far as appears by the record, made no complaint relative to the alleged defects until in July following. Bnder such circumstances there was a question as to whether or not he did not waive any defects that might have existed in the goods at the time of their delivery. Pierson v. Crooks, 115 N. Y. 539. At most he could only recoup against the plaintiff’s claim such damages as might be shown to have been created by reason of a breach of warranty on the part of the plaintiff.

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

Gildebsleeve and Ambito, JJ., concur.

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Per Curiam.

This action was brought to recover the value of certain goods sold to the defendant by the plaintiff’s assignor. Among the articles sold were a screen, lamp stand and shade at the agreed price of $179. The answer sets up that plaintiff’s assignor and the defendant entered into an agreement under the terms of which there were to be delivered to the defendant in Brooklyn, N. Y., the aforesaid articles “ in perfect conditionthat the lamp stand delivered was not the one purchased and the screen was not in “ perfect condition.” The defendant also set up a counterclaim for damages by reason of the defective condition of certain other goods purchased by him of plaintiff’s assignor and asked judgment for $125 against plaintiff for that amount. The justice dismissed the complaint and rendered judgment in favor of the defendant upon his counterclaim [576]*576for $95. The giving of the judgment against the plaintiff is conceded to have been error, and the defendant consents that the judgment be modified by striking out the amount of recovery and rendering judgment in favor of the defendant upon the merits. The dismissal of the complaint was, however, clearly error. The sale was made to the defendant in March, 1905, and the goods were to be delivered to him as before stated in Brooklyn. He received them shortly after, retained them and, so far as appears by the record, made no complaint relative to the alleged defects until in July following. Bnder such circumstances there was a question as to whether or not he did not waive any defects that might have existed in the goods at the time of their delivery. Pierson v. Crooks, 115 N. Y. 539. At most he could only recoup against the plaintiff’s claim such damages as might be shown to have been created by reason of a breach of warranty on the part of the plaintiff.

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

Gildebsleeve and Ambito, JJ., concur.

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Bluebook (online)

52 Misc. 575, 102 N.Y.S. 494, Counsel Stack Legal Research, https://law.counselstack.com/opinion/levy-v-redfern-nyappterm-1907.

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