Rosen v. Silverman — 72 N.Y.S. 1126

Majority

p. 1126

ROSEN, Respondent, v. SILVERMAN, Appellant.

(Supreme Court, Appellate Term.

June, 1901.)

Headnote

Action by Frank E. Rosen against Jacob Silverman.

C. S. Rosenthal, for appellant. A. I. Spiro, for respondent.

Granting the power of the court below to grant the motion of the plaintiff’s counsel, after resting his case and over the defendant’s objection and exception, to change the cause of action from a sale and delivery of merchandise to one for damages for the breach of a contract- for the sale and delivery of personalty, that will not uphold a judgment given for the purchase price. Such measure of damages is manifestly inaccurate, enabling the plaintiff to recover the price and retain the property. The correct measure of damage is the difference between the contract price and the value of the property at the time of the breach. Judgment reversed, and new trial ordered, with costs to abide the event.