Keep v. Horner — 55 N.Y.S. 437

Majority

p. 437

KEEP v. HORNER et al.

(City Court of New York, General Term.

January 3, 1899.)

Headnote

Money Received—Sales.

A person who deposited money to he applied to the payment of any purchases made by a certain person, who selected and approved articles which were set apart for her, to- he delivered under terms of sale agreed on, cannot recover such money, for the transaction constituted a completed contract of sale.

Appeal from trial term.

Action by William P. Keep against Robert J. Horner and another. From a judgment for plaintiff, and an order denying a new trial, defendants appeal.

Reversed.

Argued before O’DWYER and OLCOTT, JJ.

Eugene Howell Daly, for appellants.

Morris J. Hirsch, for respondent.

The contemplated purchases were actually made. Miss Francis selected and finally approved and accepted the furniture. It was set apart for her. She ordered its prompt delivery on Friday, which the defendants promised, and she agreed with the defendants on the terms of payment, all which appears by undisputed evidence. These facts constitute a complete conditional sale, and furnish all its elements. The plaintiff having, in the words of his own complaint, deposited the money in suit “to be applied to the payment of any purchases” made by Miss Francis, she having made such purchases, the plaintiff cannot recover. It follows that the verdict upon which the judgment appealed from is founded was against the law and evidence.

Judgment and order appealed from reversed, and a new trial ordered, with costs to the appellants to abide event.

OLCOTT, J., concurs.