McBride v. Korff

98 N.Y.S. 822

Opinion

PER CURIAM.

The proof disclosed that the defendant took two furniture covers from the plaintiff’s home,.at his request, to alter them; and it may be that a cause of action for the breach of the implied agreement to return the articles repaired or altered within a reasonable time was established. We may also assume that, while the action was described by the oral pleadings as in conversion, the parties had cony sented to litigate the cause as one for the breach of a contract, since the variance was not suggested at this trial; but there was a total failure of proof upon the subject of damages, and no possible basis was afforded for a recovery of $25, within any measuré of damages which might have been deemed applicable, whatever the cause of actio'm

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