Hight v. Hauptman — 110 N.Y.S. 1132

Majority

p. 1132

HIGHT et al. v. HAUPTMAN.

(Supreme Gourt, Appellate Term.

June 5, 1908.)

Headnote

Appeal from Municipal Court, Borough of Manhattan, Eighth District. Action by William P. Hight and Ernest W. Merrill, copartners as Hight & Merrill, against Adolph Hauptman, on a contract. From a judgment for plaintiffs, defendant appeals. Modified and affirmed.

Edgerton, Allen & Dean (William Allen, of counsel), for respondents.

John Mamheimer, for appellant.

It would seem that the trial judge was correct in finding for the plaintiffs, but wrong in failing to allow the 15 per cent, conceded by the factory upon the new contract made between the parties after negotiations for the return of the chair seats. The record does not seem to indicate that defendant was entitled to the 5 per cent, for spot cash, nor does it appear that he should be allowed the protest fee on the returned check of $5,133, which they should not have attempted to use in view of the new contract. Figured as above indicated, the plaintiffs would be entitled to a judgment for $336.61, with interest and costs. ■Judgment modified, by reducing the amount of recovery to the sum of $336.61, with interest and appropriate costs in the court below, and, as modified, affirmed, with costs to the appellant in this court. .