Imperial Garage v. Ryttenberg — 134 N.Y.S. 1135

Majority

p. 1135

IMPERIAL GARAGE v. RYTTENBERG et al.

(Supreme Court, Appellate Division, First Department.

March 22, 1912.)

Headnote

Appeal from Trial Term, New York County. Action by the Imperial Garage against Clarkson P. Ryttenberg and others. From judgment entered upon a verdict for plaintiff, defendants appeal. Reversed, and new trial ordered, unless plaintiff stipulates to reduce the judgment, in which event judgment, as reduced, to be affirmed. R. M. Cohen, for appellant Ryttenberg. Stetson, Jennings & Russell, for appellant Matheson Automobile Co. Walter C. Low, for respondent.

We think there was a question to be submitted to the jury as to whether the plaintiff was not responsible for the damages caused by the cracked cylinder, and it was therefore error to dismiss the counterclaim to that extent. The judgment and order will therefore be reversed, and a new trial ordered, with costs to appellants to abide event, unless plaintiff stipulates to reduce the judgment as entered to the sum of $501.09, in which event the judgment, as so reduced, and the order appealed from, will be affirmed, without costs.