Powell v. Morrell — 121 N.Y.S. 225

Majority

p. 225

POWELL et al. v. MORRELL.

(Supreme Court, Appellate Term.

February 18, 1910.)

Headnote

Sales (§ 126^[1] )—Rescission—Time.

Where defendant wore for 30 days a suit furnished him by plaintiff, the latter was not obliged to accfept its return, though it did not fit.

[Ed. Note.—For other cases, see Sales, Cent. Dig. § 313; Dec. Dig. § 126.^[1] ]

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

Action by A1 Powell and another, copartners, doing business under the firm name and style of A1 Powell & Co., against Clarence P. • Morrell. From the judgment, plaintiffs appeal.

Reversed, and new trial ordered.

Argued before SEABURY, LEHMAN, and BIJUR, JJ.

Kneeland & Glaze, for appellants.

Armstrong, Brown & Boland, for respondent.

Plaintiff sued to recover a balance of $199 for work performed at the request of the defendant. The defendant admitted this claim, with the exception of an item of $60, which the plaintiff claimed to be due for a suit of clothes furnished to the defendant. The defendant claimed that the suit did not fit, and that he returned it to the plaintiff. The court below awarded the plaintiff judgment for the amount claimed, less $50 for the suit of clothes which the defendant returned to the plaintiff.

It appears from the testimony of the defendant that he accepted the suit when the plaintiff delivered it and -that he used it for a period of 30 days. After the suit had been worn for 30 days, the plaintiff was .not obliged to accept its return, even if it did not fit.

Judgment reversed, and new trial ordered, with costs to the appellant to abide the event. All concur.