Mazzeo v. Berkeley Motor Sales, Inc.

Appellate Terms of the Supreme Court of New York

Mazzeo v. Berkeley Motor Sales, Inc.

183 Misc. 628, 53 N.Y.S.2d 501, 1944 N.Y. Misc. LEXIS 2831

CourtAppellate Terms of the Supreme Court of New York

DecidedDecember 15, 1944

StatusPublished

Cited by1 cases

This text of 183 Misc. 628 (Mazzeo v. Berkeley Motor Sales, Inc.) 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

Mazzeo v. Berkeley Motor Sales, Inc., 183 Misc. 628, 53 N.Y.S.2d 501, 1944 N.Y. Misc. LEXIS 2831 (N.Y. Ct. App. 1944).

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Opinion

Memorandum

Per Curiam.

In the absence of any claim by defendant of mutual cancelation of the contract or inability through no fault of its own to make delivery, there is no legal basis for an award of $25 to plaintiff. Both- parties asserted readiness and ability to perform. If plaintiff breached the contract he was entitled to nothing. If defendant refused to perform, plaintiff was entitled to recover the sum of $250. (Genovese v. Lenobel, Inc., 154 Misc. 91.) The written agreement provided that $250 was the allowance for the used car. That sum would have been deducted from the contract price had the deal been consummated. If plaintiff was ready and able to perform, since because of Federal regulations there was no other car that he could get, he could recover the sum fixed as an allowance. On the other hand, if he refused delivery, no award should have been made to him.

The judgment should be reversed on the law and new trial granted, with thirty dollars costs to plaintiff to abide the event.

MacCrate, Smith and McCooey, JJ., concur.

Judgment reversed, etc.

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Memorandum

Per Curiam.

In the absence of any claim by defendant of mutual cancelation of the contract or inability through no fault of its own to make delivery, there is no legal basis for an award of $25 to plaintiff. Both- parties asserted readiness and ability to perform. If plaintiff breached the contract he was entitled to nothing. If defendant refused to perform, plaintiff was entitled to recover the sum of $250. (Genovese v. Lenobel, Inc., 154 Misc. 91.) The written agreement provided that $250 was the allowance for the used car. That sum would have been deducted from the contract price had the deal been consummated. If plaintiff was ready and able to perform, since because of Federal regulations there was no other car that he could get, he could recover the sum fixed as an allowance. On the other hand, if he refused delivery, no award should have been made to him.

The judgment should be reversed on the law and new trial granted, with thirty dollars costs to plaintiff to abide the event.

MacCrate, Smith and McCooey, JJ., concur.

Judgment reversed, etc.

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Bluebook (online)

183 Misc. 628, 53 N.Y.S.2d 501, 1944 N.Y. Misc. LEXIS 2831, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mazzeo-v-berkeley-motor-sales-inc-nyappterm-1944.

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