Goldberg v. Zucker — 88 N.Y.S. 410

Majority

p. 410

GOLDBERG et al. v. ZUCKER et al.

(Supreme Court, Appellate Term.

May 19, 1904.)

Headnote

1. Contracts—Manufacture of Goods—Breach.

The fact that plaintiffs returned unfinished a portion of the garments sent to them by defendants to be manufactured did not constitute a breach of contract by plaintiffs, where they had not agreed to make any certain number of garments, and it did not cost defendants any more to manufacture the garments returned by plaintiffs than the price agreed to be paid plaintiffs for making similar garments.

Appeal from Municipal Court, Borough of Manhattan, Fourth District.

Action by Morris Goldberg and' another against John Zuclcer and another. From a judgment for plaintiffs, they appeal. Reversed.

Argued before FREEDMAN, P. J., and TRUAX and SCOTT, JJ.

Jacob Rieger, for appellants.

Richard I. White, for respondents.

Plaintiffs sued for work done for the defendants in the manufacture of ladies’ underwear. They proved their claim to be $63.57. The pleadings were oral, the defendants interposing a gen

p. 411

eral denial and a counterclaim for $4.38. Upon the trial defendants admitted that the plaintiffs manufactured garments at prices agreed upon to amount to the sum of $40. They endeavored to show that some of the garments sent by them to plaintiffs to be made up were returned in a wholly unfinished state. They failed to show, however, that plaintiffs had agreed to make any certain number of garments, or that it cost defendants more to manufacture the garments returned by plaintiffs than the price agreed to be paid plaintiffs for making similar garments, and as to such goods they failed to show any breach of contract upon the part of the plaintiffs regarding them. Defendants also claimed that some of the work done by plaintiffs upon the garments charged for was done in an improper manner. As to the number of garments so improperly finished the testimony is very unsatisfactory, and no testimony was given as to what would be the cost of correcting the improperly made garments, if any there was. The trial judge, however, reduced plaintiffs’ claim from $63.57 to $20.01, giving judgment for th.e latter amount only. As the testimony stood when the case was closed, the plaintiffs should have had a judgment for at least $40.

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