Headnote
Appeal from Municipal Court, Borough of Manhattan, Fifth District. Action by Kopel Engelberg against Cavanagh Bros. & Co. From a judgment for plaintiff, defendants appeal.There was nothing in this case except a question of fact, and I see no reason for disturbing the verdict of the jury. In my opinion the judgment should be affirmed, with costs.
BISCHOFF, J., concurs.
(dissenting). The plaintiff contracted to make for the defendant a quantity of belts out of the “best white oak tanned strap leather, government standard, weighing not less than six ounces to the square foot.” The said belts were to be of .“dark russet and equal in quality to that shown in the standard sample.” There is- no evidence in the case that the leather was “government standard,” and the evidence in the case shows that the belts were made out of leather weighing less than six ounces to the square foot, and thht they were not of dark russet color but were light russet. The plaintiff, not having kept his contract, cannot recover under it. Judgment appealed from should be reversed, and a new trial ordered, with costs to the appellant to abide the event.