Maeyers v. McDonough — 154 N.Y.S. 116

Majority

p. 116

MAEYERS et al. v. McDONOUGH.

(Supreme Court, Appellate Term, First Department.

June 28, 1915.)

Headnote

Sales @=>441—Defective Quality—Sufficiency of Evidence.

In an action tor the purchase price of gloves, defendant claimed that certain gloves were defective, though sold under a guaranty of quality, and she filed a written offer to return a quantity of the gloves alleged to be of a specified value, and to allow plaintiffs to take judgment for the balance due. On the trial, a few of the gloves were produced and sub- • initted for examination, but no specified quantity of gloves were shown to be defective, and no proof of value of the defective gloves was given. Held that, as the offer of judgment -was not evidence of value, and as there was an entire absence of proof upon this question, there was no basis for the allowance of defendant’s claim, and a judgment allowing such claim would be reversed.

[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 1277-1283-; Dec. Dig. @=441.]

<@z^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Appeal from Municipal Court, Borough of Manhattan, Ninth District.

Action by Bdwin L. Maevers and others against Mary McDonough. From a judgment rendered in favor of plaintiffs for an insufficient amount, they appeal. Reversed, and new trial ordered.

Argued June term, 1915, before GUY, BIJUR, and PAGF, JJ.

p. 117

Fischer, Wolf & Villamena, of New York City (George Wolf, of Brooklyn, of counsel), for appellants.

Charles Webber, of Brooklyn, for respondent.

This action was brought to recover the sum of $112.72 alleged to be due the plaintiffs upon a sale of a quantity of gloves to the defendant. The defendant claimed that certain of the gloves were defective and unfit for use, and that they were sold under a guaranty of quality. She filed with the court a written offer to return to the plaintiffs a quantity of the gloves, which she set forth was of the value of $93.52, and to allow the plaintiffs to take a judgment for the balance due the plaintiffs. This offer was refused, and the case went to trial. The trial justice allowed the defendant the amount of her claim, and gave judgment for the sum of $19.20 damages in favor of the plaintiffs, f,rom which judgment they appeal.

The judgment must be reversed, as there is an utter failure of proof on the part of the defendant as to the value of the gloves which are claimed by her to be defective. The testimony relied upon by respondent fails to support this contention. A few gloves were produced and submitted for the examination of the trial court, but no specified number of packages were shown, and no proof of value given. The offer of judgment is not evidence of value, and there is an entire absence of proof upon this question. There was no basis shown for the allowance made to the defendant in the judgment.

Judgment reversed, and a new trial ordered, with costs to the appellants to abide the event. All concur.