Russell v. Yglesias & Co. — 205 A.D. 868

Majority

p. 868

First Department,

February, 1923.

Frank C. Russell and S. Livingston Davis, as Copartners, etc., Respondents, v. Yglesias & Co., Inc., Appellant.

Headnote

Sales — action by buyer for breach of contract — ■90% delivery would have fulfilled contract — verdict should have been directed on that basis and not on basis of 100% delivery.

Appeal by defendant from a judgment of the Supreme Court, entered in the New York county clerk’s office April 21, 1922, upon the verdict of a jury rendered by direction of the court, and also from an order entered May 11, 1922, resettling a previous order denying defendant’s motion to set aside the verdict.

The contract upon which the first cause of action is based called for the delivery of 1,000 bags of coffee with a permissible leeway of ten per cent. The defendant delivered 256 bags of coffee so that it was short 744 bags on the 1,000 bag contract. But, as a leeway of ten per cent was allowed, 900 bags would have been a good delivery. The shortage, therefore, was only 644 bags. The trial judge directed a verdict for the 744 bags, while it should have been directed for only 644 bags. We are of opinion that the judgment should be modified by reducing the verdict to $1,883.70, and as so modified affirmed. Present — Clarke, P. J., Smith, Merrell, Finch and McAvoy, JJ. Judgment modified by reducing the judgment as entered to the sum of $2,016.70, and as so modified the judgment and order are affirmed, without costs.