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Difuria v. Wallace

151 N.Y.S. 1112 Court N.Y. App. Div. Decision date 1915-01-20 English

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p. 1112
DIFURIA, Respondent, v. WALLACE, Appellant.
(Supreme Court, Appellate Division, Fourth Department.
January 20, 1915.)

Headnote

Action by Antonio Difuria against Lulu J. Wallace.

Judgment and order reversed, and new trial granted, with costs to appellant to abide event. Held, that the evidence presented a question of fact as to the refusal of the defendant to perform, thereby relieving the plaintiff from the tender of the purchase price, and that the credibility of the plaintiff’s testimony, under the circumstances of this case, was for the jury. See Mendoza v. Levy, 111 App. Div. 449 , 97 N. Y. Supp. 753 , and cases cited.