Frieder v. Rosen — 147 N.Y.S. 442

Majority

p. 442

FRIEDER v. ROSEN et al.

(Supreme Court, Appellate Term, First Department.

May 7, 1914.)

Headnote

Sales (§ 392^[1] ) — Remedies of Pubohaseb — Recoveby of Pbice — Retubn of Goods.

Under Sales of Goods Act (Laws 1911, c. 571) § 150, subd. Id, permitting the buyer, upon breach of warranty by the seller, to offer to return the goods and recover the price paid, the buyer cannot maintain an action for the price already paid, on the ground that the goods were defective, unless he returns or offers to return the goods.

[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 1128-1131; Dec. Dig. § 392.*]

• Appeal from Municipal Court, Borough of Manhattan, Second District.

Action by Max Frieder against Frank E. Rosen and another, doing business as Frank E. Rosen & Co. From a judgment of the Municipal Court for plaintiff, defendants appeal.

Reversed, and complaint dismissed.

Argued April term, 1914, before GUY, PAGE, and WHITAKER, JJ.

Schachne & Wolf, of Brooklyn (George-Wolf, of New York City, of counsel), for appellants.

Bernard Fliashnick, of New York City, for respondent.

The plaintiff sues to recover the purchase price paid for certain furniture, upon the ground that the furniture was defective, and that, although the defects were patent and discernible on inspection, an opportunity to inspect was not afforded, as payment was demanded on delivery. Unfortunately for the plaintiff, he did not, on discovering the defects, return or offer to return the goods to the seller, and therefore cannot maintain this action. Sales óf Goods Act, § 150, subd. Id.

The judgment must therefore be reversed, with costs, and complaint dismissed, with costs, without prejudice to another action. All concur.