Steinhardt v. Phelps — 66 N.Y.S. 311

Majority

p. 311

STEINHARDT v. PHELPS.

(Supreme Court, Appellate Term.

October 4, 1900.)

Headnote

Breach of Warranty—Measure of Damages—Evidence—Admissibility.

In an action for breach of warranty in the sale of an animal, the measure of damages is the difference between the value of the animal as warranted and its actual value when sold.

Appeal from municipal court, borough of Manhattan, Tenth district.

Action by Annie Steinhardt against Merritt C. Phelps. From a judgment in favor of plaintiff, defendant appeals.

Reversed.

Argued before BEEKMAN, P. J., and GIEGERICH and O’GORMAN, JJ.

Lyman W. Reddington, for appellant.

Howe & Hummel, for respondent.

The exclusion of testimony offered by the defendant tending to show the actual value of the animal in question at the time of the sale was prejudicial error requiring a reversal of this judgment. Where the action is for breach of warranty, or fraud in the sale of goods, the measure of damages, if there has been no rescission, is the difference between the value of the chattel if it had corresponded with the warranty and its actual value.

Judgment reversed, and new trial ordered, with costs to the appellant to abide the event.