Loader v. Brooklyn Chair Co. — 72 N.Y.S. 297

Majority

p. 297

LOADER et al. v. BROOKLYN CHAIR CO.

(Supreme Court, Appellate Division, Second Department

October 18, 1901.)

Headnote

Sale—Return of Goods—Recovery of Price Paid.

Where the purchaser returned the identical goods purchased to the seller, who retained them and made no offer to return them, the purchaser was entitled to the money paid on the sale.

Jenks and Sewell, JJ., dissenting.

Appeal from municipal court, borough of Brooklyn.

Action by Joseph Loader and Henry Loader, composing the firm of Joseph Loader & Son, against the Brooklyn Chair Company, a corporation. From a judgment in favor of defendant, plaintiffs appeal.

Reversed.

Argued before GOODRICH, P. J., and JENKS, WOODWARD,. HIRSCHBERG, and SEWELL, JJ.

Felix Reifschneider, Jr., for appellants.

Frank P. Slade, for respondent.

In this case there appears to be no dispute but that the chairs which are the subject of the controversy were returned by the plaintiffs to the defendant, and have ever since been retained by it. Under the contract the plaintiffs were therefore entitled to a return of the money which they had paid for the chairs, unless the defendant refused to accept them and offered to return them. Having retained the chairs, and not having offered to return them, the judgment appealed from is unsupported. There should therefore be a new trial ordered.

Judgment of the municipal court reversed, and new trial ordered; costs to abide the event.

JENKS and SEWELL, JJ., dissent.