Burke v. City of New York — 108 N.Y.S. 650

Majority

p. 650

BURKE v. CITY OF NEW YORK.

(Supreme Court, Appellate Term.

February 7, 1908.)

Headnote

Municipal Cobpobations—Pubchase of Goods—Liability.

One selling to a city a tripod can recover only the market value, shown by what the city could have purchased it for in the market, at the time plaintiff made the purchase, in order to deliver the same to the city.

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

Action by William E. Burke against the city of New York. From a judgment for plaintiff, defendant appeals. Modified and affirmed.

Argued before GILDERSLEEVE, P. J., and SEABURY and GERARD, JJ.

Francis IC. Pendleton (Theodore-Connoly and Thomas E. Noonan, of counsel), for appellant.

Emmet J. Murphy, for respondent.

The plaintiff sold to the defendant a split tripod, for which he claims $220.' The justice gave him judgment for that sum, with interest and costs. Defendant appeals, and urges as the sole ground for reversal that the market price was $198, and not $220.

The only witness as to the market value was one Weislcer, who testified thus: “Q. What was the market value of such an instrument on March 16, 1907? A. $220.” It appears on cross-examination, however, that defendant, at the time plaintiff made the purchase of the tripod, in order to deliver same to defendant, could have purchased the same in the market for $198. Had the city occasion, at this time, to replace a lost tripod of the kind in question, it could have bought the same in the market for $198.

The judgment should be reduced by $22, and, as thus modified, affirmed, without costs to either party.