HERZFELD et al. v. ROBINSON et al.(Supreme Court, Appellate Term, First Department.Headnote
Sales <§=>365—Action for Price—Verdict—Conformity to Issues.In an action to recover on defendants’ alleged promise to pay $200 for machinery installed on certain premises, in which defendants alleged that the promise was to pay only such sum as should be realized on a sale of the property over and above the sum of $400, and that less than $400 had been realized, a verdict of $100 was inconsistent with either claim, and could not stand.
. [Ed. Note.—For other cases, see Sales, Cent. Dig. § 1077; Dec. Dig. <§=>365.]
Appeal from Municipal Court, Borough of Manhattan, First District.
Action by Leo Herzfeld and another against Abraham Robinson and another. From a judgment for plaintiffs, defendants appeal. Reversed, and new trial ordered.
Argued February term, 1915, before GUY, PENDLETON, and SHEARN, JJ.Irving Rosenberg, of New York City, for appellants.
Sol. Levi, of New York City, for respondents.
The action was brought to recover $200 on defendants’ alleged promise, among other things, to pay that amount for the purchase of certain machinery installed on certain premises. Defendants denied the promise to pay $200, and claimed the promise was to pay such sum as should be realized on a.sale of property over and above a sum of $400, due defendants from plaintiffs, and alleged that, in fact, less than $400 had been realized on the sale. The verdict of $100 is inconsistent with either claim, and cannot be reconciled to any view of the evidence. Plaintiff was entitled to recover the full amount of $200, or nothing, and the verdict should have been set aside. - •
Judgment and order reversed, and new trial ordered, with costs to appellant to abide the event. All concur.