Lovejoy Co. v. Stewart Printing Co.

138 N.Y.S. 284

• Court: Appellate Terms of the Supreme Court of New York
• Decided: December 6, 1912
• Status: Published

Opinion

LEHMAN, J.

The plaintiff sues for the agreed price of making certain electrotype plates for the defendant. It demands judgment for the sum of $222.75, but at the trial presented evidence in regard to items aggregating only the sum of $174.74. Yet it has recovered judgment for the full ¿mount demanded in the complaint. If the evidence were clear that the plaintiff was entitled to- recover the amount of $174.74,.we could modify the judgment; but I do not find sufficient evidence to show that the plaintiff was entitled to any recovery in this action. The defendant denies the performance of the work as agreed, and claims that the plates were defective, and that it cost more than the agreed price to remedy the defects. The plaintiff admits that the plates- furnished are defective, but claims that the custom in the trade is that an opportunity must be given to their finisher to remedy defects after notice of the defects, and that no notice was given. Conceding, without deciding, that plaintiff has sufficiently shown this custom of trade, it is entitled to recover only upon proof that the conceded defects could have been remedied if notice had been given. The plaintiff’s expert testifies vaguely:

“It is not in first-class condition; but it is in a condition that could have been remedied a great deal ii we had known,”

—and that some of the defects would have been remedied; nor does the plaintiff show the necessary cost of remedying the defects, if opportunity had been given. Upon this record, therefore, the judgment cannot be sustained.

Judgment should be reversed and a new trial ordered, with costs to appellant to abide the event. All concur.