Maurer v. Wolff — 50 N.Y. St. Rep. 634

Majority

p. 634

Theodore Maurer, Resp't, v. Jules Wolff et al., App'lts.

(Supreme Court, General Term, Second Department,

Filed December 12, 1892.)

Headnote

1. Sale—Conditional—Ketubn of money.

Where a horse is bought on thirty days trial and returned without objection within that time, the purchaser is entitled to a return of his purchase money.

2. Same—Sunday.

The fact that the sale was made on Sunday affords no reason why the vendor should be allowed to keep the money under those circumstances.

Appeal from judgment of the Kings county court, affirming the judgment of a justice of the peace in favor of plaintiff. Action to recover back the purchase price of a horse purchased by plaintiff from defendants and for the hiring of another to take his place.

The testimony before the justice was as follows :

Theodore Mauer, the plaintiff, called in his own behalf, testified that he paid $50 for the horse; that he was a balky horse; didn’t have any feet at all and could hardly stand; that the defendant said he was a good horse; that he demanded of the defendant bis money and returned the horse, and that the defendant has both money and horse; that the horse was purchased on Sunday, and he paid for him on Sunday; when recalled, that he had to hire a horse to take the place of the one he bought; that he had him thirty-one days and paid one dollar per day for the same ; that the defendant guaranteed the horse ; that he took Mr. Palmer with him when he purchased the horse, and on his saying he thought he was worth $50, he took him.

“ The defendant gave me thirty days to try the horse.”

William F. Palmer was called'' on behalf of the plaintiff, and testified that he paid the first five dollars on the contract; that he was with the plaintiff when he bought the horse; that he knew the plaintiff took the horse back, and was there when he made the demand for his money, and that the money was paid on Sunday. He paid the first five dollars and went back with the plaintiff and got the other $45 ; that when they picked the horse out he said to the defendant, “I think this will be a good horse,” and that the defendant said, “ This horse will work anywhere you put him.”

The defendants offered no testimony. The justice then rendered judgment for the amount claimed, with costs.

Hurd & Grim, for app’lts ;

John F. Foley, for resp’t.

The testimony authorizes a finding that plaintiff had thirty days in which to determine whether the horse was satisfactory. Within that time the horse was returned to the vendor who received it without objection so far as appears.'

This action is brought to recover back the price paid for the horse on the original purchase. No defense is pleaded except that the original sale was made on Sunday, which is clearly frivolous. If the sale was invalid, that affords no reason why defendant should be allowed to keep money belonging to his neighbor. Judgment affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.