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Royal Discount Corp. v. Luxor Motor Sales Corp.

9 Misc. 2d 307 Court Supreme Court, Appellate Term, First Department, Decision date 1957-12-19 English

Contents

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p. 307
Royal Discount Corp., Appellant, v. Luxor Motor Sales Corp., Respondent.
Supreme Court, Appellate Term, First Department,
December 19, 1957.
p. 308
Irving G. Schleimer for appellant.
Daniel Rosen for respondent.

An assignment of a retail installment contract, by which the seller warrants that the cash down payment specified as having been paid by the purchaser was actually paid, is breached when the proof establishes that the down payment was in fact less than the amount so warranted (Commercial Credit Corp. v. Third & Lafayette Sts. Garage, 226 App. Div. 235 ; Northeast Discount Corp. v. Queens Hill Motors, 150 N. Y. S. 2d 848 ).

The terms “costs” and “expenses” as employed in the assignment agreement do not include attorney’s fees, and attorney’s fees are not recoverable in the absence of express language in the contract or statute (Hayman v. Morris, 37 N. Y. S. 2d 884 ).

The judgment should be reversed, with $30 costs, and judgment directed for the plaintiff in the sum of $426.13, with interest and costs.

Hofstadter, Steher and Hecht, JJ., concur.

Judgment reversed, etc.