Maas v. Scharbach — 68 N.Y. St. Rep. 214

Majority

p. 214

Moses Maas, Resp’t, v. Louis A. Scharbach et al., App’lts.

(New York Common Pleas, General Term,

Filed June 27, 1895.)

Headnote

Sale — Condition—Return.

The return oí a steamship ticket, which was purchased under a contract that the money should be refunded if the ticket was not used within 1 a certain time, is not essential to recovery, where it is of no value after the lapse of such time.

Appeal from a judgment for plaintiff.

A. H. Berrick, for app’lts; Jacob Levy, for resp’t.

— This case presents nothing more than a well-defined issue of fact, determined by the justice in plaintiff’s favor upon sufficient evidence; hence, under the established rule governing appeals from the district courts, there is no ground for our disturbing the judgment. Whether plaintiff’s agreement with the defendants was that the sum in suit, paid by the former to the latter upon the purchase of a steamship passage ticket from Hamburg to New York, should be refunded if the ticket was not used by the intending passenger within a year, or whether a return of the ticket was essential, was the only point in issue; and the plaintiff’s evidence sufficiently supported the finding that the purchase money was to be refunded, under the agreement between the parties, should the individual to whom the ticket was sent fail to make use' of it, and obtain a passage to the port of New York, within one year. It is not contradicted that a year had elapsed when plaintiff made his final demand for the money, and that the ticket had never been availed of.

p. 215

The appellant urges that plaintiff should not be allowed to recover back the purchase price without a return of the thing sold, but this contention assumes the ticket itself to have been the subject of the sale, whereas the ticket was but a token furnishing the evidence of a right to demand transportation, 25 Am. & Eng. Enc. Law, 1074, 1075, and cases cited, and from the plaintiff’s -evidence, it is logically inferable that this token was of no value after the elapse of one year from the sale. We have but to affirm the judgment.

Judgment affirmed, with costs.

All concur.