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Cohn v. Tanner Motor Car Co.

147 N.Y.S. 574 Court N.Y. App. Div. Decision date 1914-05-15 Docket No. 5771 English

Delivered by SCOTT, J.

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p. 574
COHN v. TANNER MOTOR CAR CO.
(No. 5771.)
(Supreme Court, Appellate Division, First Department.
May 15, 1914.)

Headnote

1. Appeal and Ebbob (§ 1003[1] )—Review—Vebdict—Weight op Evidence— '—Amount oe Recovery. .
Where a jury found on conflicting evidence that an automobile dealer ' had represented as being new and .in first-class condition a car which was clearly shown to be not new and not in first-class condition, but awarded only nominal damages, the verdict was against the evidence and will beset aside.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3938-3943; Dec. Dig. § 1003.*]
2. Contracts (§ 303*)—Breach—Advertising Contract.
One who, in part payment for an automobile, agreed to place certain advertisements for the seller, was not liable for a refusal to place such advertisements, where the matter to be displayed was never furnished to him.
[Ed. Note.—For other cases, see Contracts, Cent. “Dig. §§ 1409-1443; Dec. Dig. § 303.*]
Appeal from Trial Term, New York County.
Action by Isaac J. Cohn against the Tanner Motor Car Company. Judgment for the defendant, and plaintiff appeals.
Reversed, and new trial granted.
See, also, 147 N. Y. Supp. 1104 .
Argued before INGRAHAM, P. J., and McLAUGHLIN, CLARKE, SCOTT, and HOTCHKISS, JJ.
Louis B. Williams, of New York City, for appellant.
Charles Burstein, of Brooklyn, for respondent.

This action is for damages for false representations in the sale of a motor car. The defendant counterclaims for damages for plaintiff’s failure to do certain advertising for defendant. Plaintiff, who had already owned cars sold by plaintiff, purchased on April 4, 1912, a six-cylinder five-passenger car for the price of $1,850, paying $600 in cash, $650 by turning in his old car, aiid as to the remaining $600 agreed to place advertisements at certain stations of the Long Island Railroad Company. By agreement one-half of this advertising was to be done for another company.

[1, 2] The plaintiff alleges that defendant represented and warranted that the car sold was a new one and was in first-class condition. The principal question litigated was whether or not this representation had been made; defendant claiming that plaintiff had purchased the car well knowing that it had been used to a considerable extent. Upon this issue the jury found in plaintiff’s favor, but for some reason, not apparent, awarded only nominal damages, although it was clearly shown that the car was not a new one and was far from being in first-class condition. To find that the representations were made as claimed by plaintiff, and yet to award only nominal damages, was so inconsistent as to compel the conclusion that the verdict was against the evidence. The court directed a verdict in favor of defend

p. 575
ant upon the counterclaim. This was error. The plaintiff had never refused to display defendant’s advertisements. He could not do so until the matter to be displayed had been furnished him, and this was never done.

The judgment and order appealed from must be reversed, and a new trial granted, with costs to appellant to abide the event. All concur.