Sklarsky v. Marine Manufacturing & Supply Co.

33 Misc. 761, 67 N.Y.S. 897

Opinion

Per Curiam.

There was evidence enough in this case to support a finding that the sale was by sample and that the goods delivered did not conform to the sample. The goods were promptly returned by the plaintiff as soon as this was discovered and were accepted by the defendant, who returned the purchase money. The plaintiff brought this action to recover damages for the breach of the contract.

There is no question of warranty, express or implied, in the case. The sole inquiry is, did the defendant deliver to the plaintiff that which it had agreed to sell, and the trial justice having resolved that question in favor of the plaintiff upon evidence which we cannot say was insufficient, the judgment must be affirmed.

Present: Beekmak, P. J., Gtegebici-i and O’Gobmah, JJ.

Judgment affirmed, with costs.