Fischer v. Keilly — 15 N.Y. St. Rep. 399

Majority

p. 399

John Fischer et al., App’lts, v. John J. Keilly et al., Resp’ts.

(City Court of New York, General Term,

Filed March, 1888.)

Headnote

Contract—When not of sale—Right to reject goods.

A person ordering a suit of furniture to be made in a particular way is under no obligation to accept a suit of different style or inferior make up. Right' to correct verdict to conform to the fact considered.

Appeal by plaintiff from judgment and an order.

Abram Kling, for app’lts; John Whalen, for resp’ts.

The record shows that the plaintiff’s contract was not one of sale, but of manufacture. They were to make for the defendants a suit of furniture like one which they had on hand. The price was to be $137. The suit of furniture did not conform to the agreement, and the defendant declined to accept it. The jury found the facts to be as stated, and found a verdict in favor of the defendants. We think that a person ordering a suit of furniture to be made in a particular way is under no obligation to accept a suit of a different style or inferior make up. The conclusion arrived at by the jury is warranted by the evidence produced by the defendants, and the jury have evidently given credence to their testimony. The plaintiffs were entitled to a verdict for twenty dollars, on an item in their complaint, not disputed upon the trial and consequently lost sight of. It was not called to the attention of the court by either counsel at or prior to the rendition of the verdict, or it might have been obviated then and there. Upon calling the attention of the court to

p. 400

the fact, on the motion for a new trial, the court ordered a new trial, unless the defendants consented to correct the omission, by changing the verdict into one in favor of the plaintiff for the twenty dollars aforesaid. The defendants stipulated to make the correction, and it was made accord ingly. The error was one of form rather than of substance, and the stipulation filed relieves the form of all objection.

We think the judgment and order ought to be affirmed with costs.

Browne, J., concurs.