Schenkel v. Langweil — 113 N.Y.S. 1145

Majority

p. 1145

SCHENKEL v. LANGWEIL.

(Supreme Court, Appellate Term.

November 24, 1908.)

Headnote

Appeal from Municipal Court, Borough of Manhattan, Second District. Action by Jacob Schenkel against Samuel Langweil. From the judgment rendered, plaintiff appeals. Reversed, and new trial ordered. Max Schleimer, for appellant. Henry A. Friedman, for respondent.

By a clear preponderance of proof plaintiff has shown that he bought a certain baby carriage of the F. A. Whitney Company, and that, through an error, said earrriage was delivered to defendant, from whom plaintiff has duly demanded the carriage; but defendant refuses to give it to plaintiff, claiming that it was one that had been bought by defendant. Indeed, the court below itself stated that the only issue was as to the value of the carriage, thereby apparently conceding plaintiff’s title to the same. Judgment reversed, and new trial ordered, with costs to appellant to abide the event.