McBride v. Korff — 98 N.Y.S. 822

Majority

p. 822

McBRIDE v. KORFF.

(Supreme Court, Appellate Term.

April 24, 1906.)

Headnote

Appeal — 'Verdict Contrary to Evidence. • ■

Wliere, in an action for breach of contract, there was a total failure of proof upon the subject of damages-, -and no possible basis for those allowed, the judgment will be reversed. ’• "

[Ed. Note. — For cases in point, see vol. 3, Cent. Dig. Appeal and Error; § 3933.] y ' •

Appeal from Municipal Court, Borough of Manhattan, Eleventh District. . . • . ; A

Action by Walter B. McBride against Hermann Korff. From’ a judgment for plaintiff,. defendant appeals.

Reversed, and new trial ordered.

Argued before SCOTT, P. J., and TRUAX and BISCHOFF,' JJ> H. V. Rutherford, for appellánt. ' , -

The proof disclosed that the defendant took two furniture covers from the plaintiff’s home,.at his request, to alter them; and it may be that a cause of action for the breach of the implied agreement to return the articles repaired or altered within a reasonable time was established. We may also assume that, while the action was described by the oral pleadings as in conversion, the parties had cony sented to litigate the cause as one for the breach of a contract, since the variance was not suggested at this trial; but there was a total failure of proof upon the subject of damages, and no possible basis was afforded for a recovery of $25, within any measuré of damages which might have been deemed applicable, whatever the cause of actio'm

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