Majority
p. 895ROSSANO et al. v. KAMINSKY et al. (Supreme Court, Appellate Term. April 16, 1912.) Argued March term, 1912, before GUY, LEHMAN, and BI-JUR, JJ.
Headnote
Food (§ 16[1] )—Vinegar—Damages.Plaintiff, who purchased vinegar which, on inspection by state officers, fell below test, and who upon being sued by the state for the appropriate penalty, notified the sellers and afforded them an opportunity to defend, and then compromised the suit for $50, could recover his damages from such dealers.
[Ed. Note.—For other cases, see Food, Cent. Dig. § 16; Dec. Dig. § 16.*]
Appeal from Municipal Court, Borough of Manhattan, Eighth District.
Action by Giuseppe Rossano and another against Abraham Kaminsky and another. From a judgment dismissing the complaint, plaintiffs appeal. Reversed, and new trial ordered.
Joseph C. Macro, of New York City, for appellants.
Rudolph Marks, of New York City, for respondents.
Plaintiffs certainly made out a prima facie case of the purchase of vinegar from defendants, introducing the bill receipted by defendants, and showed that the vinegar had been inspected by officers of the state government and found below test, whereupon plaintiffs were sued by the state for the appropriate penalty, and compromised for $50. They further showed that they had notified defendants of the pendency of the action and afforded defendants an
p. 896
opportunity to defend the same. Under the circumstances, plaintiffs are to recover. Friedgood v. Kline, 67 Misc. Rep. 428 , 123 N. Y. Supp. 247 .
Judgment reversed, and new trial ordered, with costs to appellants to abide the event. All concur.
Cases cited
- Friedgood v. Kline 67 Misc. Rep. 428 p. 896