Majority
p. 1142RADIN v. LIVINGSTON. (Supreme Court, Appellate Term. January 21, 1910.)
Headnote
Appeal from Municipal Court, Borough of Manhattan, First District. Action by Theodore Radin against Harry Livingston. From a judgment for defendant, plaintiff appeals. Modified and affirmed.Matthias Radin, for appellant.
Cohen & Cohen, for respondent.
Action for goods sold and delivered. Answer set up payment for all but one article, which was returned to plaintiff as
p. 1143
damaged. It was stipulated that plaintiff might retain the payment made without prejudice to a trial of the issues. Thus the only dispute was as to whether one cloth sack, at $9.50, was so damaged when delivered to defendant as to be unmarketable. The court found for the defendant, and no sufficient ground is presented calling for changing that result. Owing to manifest error, judgment for $9.50 was entered against the plaintiff. No costs were given. This should be corrected, by striking out that sum, leaving the record to read: “Judgment for defendant.’’ As so modified, the judgment is affirmed, with costs.