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Jonap v. Siebert

144 N.Y.S. 7 Court Argued October term, 1913, before SEABURY, GUY, and BI-JUR, JJ. Decision date 1913-11-13 English

Delivered by BIJUR, J.

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p. 7
JONAP v. SIEBERT et al.
(Supreme Court, Appellate Term, First Department.
November 13, 1913.)

Headnote

Sales (§ 179[1] )—Acceptance.
The defense, in an action for balance of price óf a pump installed by plaintiff in defendant’s house, that it ran hot because its shaft was out of alignment, is unavailing; defendants having used it continuously for two months, till the water pressure made it unnecessary.
[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 456-468; Dec. Dig. § 179.*]
Appeal from Municipal Court, Borough of .Manhattan, First District.
Action by Louis Jonap against Joseph H. Siebert and another. From a judgment for defendants, after trial without a jury, plaintiff appeals. Reversed, and new trial granted.
Argued October term, 1913, before SEABURY, GUY, and BI-JUR, JJ.
Louis E. Felix, of New York City, for appellant.
Ralph B. Ittelson, of New York City, for respondents.

Plaintiff installed under a written contract in defendants’ house a water pump, and sues for the balance of the purchase price. The pump was installed prior to September, 1912, and defendants used the same, apparently continuously, until the city’s water pressure made it unnecessary, some two months later. The defense is that the pump “ran hot” because its shaft was out of alignment. In view, however, of defendants’ retention and use of the pump, the defense, even if. proved, was unavailing. Logan v. Berkshire Apartment House, 3 Misc. Rep. 296 , 22 N. Y. Supp. 776 ; Turl v. Knabe, 26 Misc. Rep. 770 , 56 N. Y. Supp. 1017 . Judgment reversed, and new trial granted, with costs to appellant to abide the event. All concur.

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