Majority
p. 1004PAQUIN, Limited, v. M. COWEN CO. (Supreme Court, Appellate Term. January 8, 1909.) Argued before GILDERSLEEVE, P. J., and BIS CHORE and GUY, JJ.
Headnote
Sales (§ Í66[1] )—Remedies of Buyer—Rescission—Breach of Contract.If a dress sold to defendant was not in accordance with his order when delivered, he had the right to reject it.
[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 391-400; Dec. Dig. § 166.*]
Appeal from Municipal Court, Borough of Manhattan, Ninth District.
Action by Paquin, Limited, against the M. Cowen Company. From a judgment for defendant, plaintiff appealed.
Affirmed.
Henry William Heifer, for appellant.
Maurice Meyer, for respondent.
We find no reason for disturbing this judgment. The plaintiff corporation made delivery of the dress to the defendant through one of its customers, who was selected by it as a medium for the purposes of carriage. Agency in this customer to accept the dress, in Paris, for the defendant, was utterly lacking according to the facts of the transaction, and the defendant had the right to reject the article when delivered to him, if not in accordance with the order. That the dress was in a condition which naturally suggested the plaintiff’s nonperformance of the agreement under which it was purchased
p. 1005
has been found by the trial court upon credible evidence, and the testimony for the plaintiff upon the subject, given by a witness who practically failed to examine the dress at all, is so inconclusive that we cannot well assume that it was, overlooked by the Justice, when referring in his memorandum to the absence of contradictory proof.
Judgment affirmed, with costs.