Cassidy v. Spingarn — 65 N.Y.S. 798

Majority

p. 798

CASSIDY et al. v. SPINGARN.

(City Court of New York, General Term.

July 11, 1900.)

Headnote

Breach oe Contract—Appeal and Error—Complaint—Motion to Dismiss-.

In an action for damages for breach of contract, where the evidence as to the contract and the amount of damage* recoverable was conflicting, a-motion to dismiss the complaint was properly overruled.

Appeal from trial term.

Action by Martin J. Cassidy and another against Elias Spingarn. From a judgment in favor of plaintiffs, and from an order denying a new trial, defendant appeals. Affirmed.

Argued before CQNLAN, SCHÜCHMAN, and HASCALL, JJ.

Hoadly, Lauterbach & Johnson, for appellant

Mandelbaum Bros., for respondents.

The action was brought upon an alleged contract for the purchase of 17 bales of a certain brand of tobacco, of which 2 were received and paid for. It is claimed by the ■ plaintiffs that they had an option on the balance of 15 bales for one week, which

p. 799

they exercised within the period, but the defendant failed to comply therewith. .The defense is that two bales were purchased, and that an option of two days was given on the balance, which was not exercised. The charge is somewhat voluminous, and covered the whole case, and, we think, very fairly submitted the questions involved for the consideration of the jury. Upon the questions of the contract itself there was, as we have already seen, a conflict. So, also, was there a dispute as to the amount of damages recoverable thereunder. But these precise questions went to the jury without any objection other than may be- inferred from the defendant’s motion to dismiss the complaint. However, no exception was taken to the charge, or to any portion thereof, so that the form of submission must have been entirely satisfactory. That the motion to dismiss was properly denied is evident because of the serious conflict of evidence, and because there was evidence sufficient to entitle the plaintiffs to go to the jury upon the question of the contract and the damages which might flow from its breach. We have carefully examined the record for any errors which might have been committed upon the trial calling for our interference with the determination there had, and we are not able to find anything which calls for such interference on this appeal.

Judgment and order appealed from must therefore be affirmed, with costs. All concur.