120 N.Y.S. 178 | N.Y. App. Div. | 1909
On March 8, 1899, thé defendant subscribed for a work made and published by the plaintiff, to wit, the American'-and English Encyclopedia of Law, second edition, “to be completed in not to exceed ” thirty-two volumes, at the rate of seven dollars and fifty cents per volume. The defendant gave twelve notes of seven dollars and fifty cents each, payable at various intervals, and sixteen dollars in cash, for the ten ready volumes, which included thirty-one dollars rent for the use of the first edition thereof pending delivery of the second edition. Tlie ten volumes were duly delivered March 31,1899, volume 11 April 19,1899, and volume 12 July 29, 1899, and the defendant gave the plaintiff therefor cash sixteen dollars April 5, 1899; seven dollars and fifty cents June 2, 1899; seven dollars and fifty cents July 19, 1899. As the defendant did not pay duly, the plaintiff sued him in August, 1901, to recover eighty-two dollars and fifty cents for deliveries of volumes 1 to 12 inclusive. The complaint stated eleven' causes of action, of which each of ten wras on a note for seven dollars and fifty cents, and tlie eleventh set out the contract, alleged delivery of twelve volumes thereunder, that “ defendant has paid the plaintiff in cash and notes on account of said several deliveries the sum of $113.50, being the said rental of $31 in full and the price of volumes 2 to 12, both inclusive of the second edition, and there remains due and owing from the defendant to the plaintiff by reason of the matters alleged in this cause of action the sum of $7.50 with interest thereon from March 31; 1899.” -Such suit was to collect the balance due for the price to be paid per volume for the books or the notes given therefor. On October 15,1901, the defendant stipulated to pay in installments ninety-nine dollars in full settlement of the claim in the action and costs, but failing in this, j udgment was entered on November 20,1902.
This judgment should be reversed. .
Hirsohberg, P. J., Woodward, Rich and' Miller, JJ., concurred.
Judgment reversed and. new trial granted, costs to abide the event.