Brandenberg v. Rosen — 102 N.Y.S. 753

Majority

p. 753

BRANDENBERG v. ROSEN.

(Supreme Court, Appellate Term.

February 11,1907.)

Headnote

Appeal—Findings of Fact—Review.

Whether plaintiff agreed to make and deliver certain garments, so that his failure to do so was a breach of the contract, was a fact to be determined by the trial justice, and his finding thereon will not be disturbed.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3955-3969.]

Appeal from Municipal Court, Borough of Manhattan, Eighth District.

p. 754

Action by Frederick Brandenberg against Leon Rosen. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued before GILDERSLEEVE, MacLEAN, and AMEND, JJ.

Louis J. Frey, for appellant.

Judson G. Wells, for respondent.

The defendant, counterclaiming for 101 “klonisky” skins, and alleging that the plaintiff has failed and neglected to make them up into garments, and that he has neglected to deliver the garments or to return the skins, by his letter of November 29, 1905, (his own Exhibit 1), to the plaintiff, made tender of delivery thereafter by the plaintiff unnecessary. Whether the plaintiff had agreed to make and deliver the garments or return the skins on or before November 29th, so that his failure so to do worked breach, and thus liability upon contract for damages therefor, was a fact to be determined, and determined as it has been by the trial justice warrants no interference by this court, liable though the plaintiff may be in a proper action for the return of the skins or their value upon demand made.

Judgment affirmed, with costs. All concur.