McNamara v. Kranin & Bach — 144 N.Y.S. 1127

Majority

p. 1127

McNAMARA, Respondent, v. KRANICH & BACH, Appellant.

(Supreme Court, Appellate Division, Second Department. '

November 7, 1913.)

Headnote

Action by ' Bessie McNamara against Kranich & Bach.

Without considering whether the action in replevin is a defense to the/

p. 1128

present action, it is decided that the evidence preponderating^ shows that the defendant, induced thereto by the plaintiff, did not sell the piano after 30 days and within 60 days of the taking thereof, whereby at the time this action was begun there was an existing waiver by the plaintiff of the sale of the property. In such view, finding of fact 14 is against the weight of the evidence. That finding is “that the plaintiff did not enter into an agreement with the defendant waiving the sale of the property at public auction.” Judgment reversed, upon the law and the facts, and new trial granted; costs to abide the event.