Standard Advertising Co. v. Gutman — 67 N.Y.S. 849

Majority

p. 849

STANDARD ADVERTISING CO. v. GUTMAN et al.

(Supreme Court, Appellate Term.

December 26, 1900.)

Headnote

Sales—Goods to be Manufactured—Refusal to Accept.

An order for a book provided for the attachment of a calendar on the outside cover, but did not specify how it was to be placed. Edil, that the fact that the calendar was placed upside down was no ground for refusal to accept the book, there being nothing to show that plaintiff’s contention that that was the proper way to place it, considering the nature and use of the book, was not correct.

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

Action by the Standard Advertising Company against Carl Gut-man and another. From a judgment for defendants, plaintiff appe&ls

Reversed

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

Benjamin & Loeser, for appellant.

Horwitz & Samuels, for respondents.

We think that the evidence in this case supports but one conclusion, namely, that the books which were delivered to the defendants conform in all essential respects to the sample, and that the latter had no right to reject them. Both the sample and one of the books which were supplied by the plaintiff' are before us as exhibits annexed to the return, and a comparison of the two, taking into account the necessary changes for which the order given by the defendant for the books in question provided, shows a substantial compliance with the requirements of such order. The defendants,

p. 850

upon the trial, laid great stress upon the claim that the leather covering of the books delivered was of an inferior quality to that exhibited by the sample, and produced two alleged experts to testify upon this subject; neither of whom, however, bore out this claim. Indeed, one of them testified that the leather was in both cases of the same quality. The claim on the part of the defendants that the calendar, which was to be attached to the outside of the back cover of the books, was upside down, is answered by the plaintiff’s statement that that was the proper way to place it, considering the nature and use of the books; and there is nothing to show that this contention is not correct. That matter cannot be determined by reference to the sample, because the sample book had no calendar whatsoever. That feature of the book was provided for in the written order, but how it was to be placed was in no way a matter of specification. The other objections were but feebly mentioned, and, in our opinion, were insufficient. For the reasons above stated, we think that the judgment dismissing the complaint was erroneous, and that a new trial should be had.

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