Loader v. Brooklyn Chair Co.

72 N.Y.S. 297, 64 A.D. 615

Opinion

PER CURIAM.

In this case there appears to be no dispute but that the chairs which are the subject of the controversy were returned by the plaintiffs to the defendant, and have ever since been retained by it. Under the contract the plaintiffs were therefore entitled to a return of the money which they had paid for the chairs, unless the defendant refused to accept them and offered to return them. Having retained the chairs, and not having offered to return them, the judgment appealed from is unsupported. There should therefore be a new trial ordered.

Judgment of the municipal court reversed, and new trial ordered; costs to abide the event.

JENKS and SEWELL, JJ., dissent.