May v. Gunther

20 Misc. 659 | City of New York Municipal Court | 1897

Van Wyck, Ch. J.

The verdict of the jury for plaintiff is a finding that she bought of defendants, who are well known dealers in furs and manufacturers, makers and repairers of fur garments, a sealskin sacque, for which she paid them $500; that, thereafter, she delivered this sealskin sacque to them under an agreement, by which they undertook to remodel, refit and retrim the same with sable fur, for the agreed price of $1'70 or $185, they to furnish the sable fur; that they did remodel and retrim the same with sable fur, but in such an unworkmanlike manner as to render it entirely worthless to plaintiff, in that it was 'remade so 'small that she could not get it on; and that they refused to enlarge it unless she would pay an additional - sum for sufficient sealskin to supply that which they had negligently cut out of the garment; and that upon her refusal to pay any more than the agreed price of-$185, she was told by them to go ahead to court. This verdict is not against the evidence or weight of evidence. However, appellants, who still retain the sacque delivered by her, and retrimmed with sable fur supplied by them, contend, that the verdict of $500 should not stand, because by their proof, it was shown that the sacque when delivered to them was worth as much, if not more than the $500, which she originally paid for it, and that hence she sustained no damage. ; The rule of damage is, that if a lady furnishes twenty yards of silk to a dressmaker, the latter agreeing for a fixed price to make the dress and supply all the trimmings,but doing her work in such an unskillful manner as to produce an absolute misfit, the lady can refuse to accept the dress, and sue the dressmaker for the value of the silk; and so, too, if a gentleman should purchase a pair of pants which were an inch too long, and take them to a tailor who measured him and agreed for a fixed price to make the proper alteration, but by mistake cut off ten inches instead of one, the gentleman would not be required to pay the tailor and accept a return of the pants, and to sue the tailor for the difference between their value as a pair of knee breeches, and their value as a-pair of pants, but could refuse their return and sue for their value when delivered to the tailor. In this case the jury have found that defendants have made an absolute misfit of this se'alskin garment, thereby rendering it wholly unfit for plaintiff’s use, and that defendants’ counterclaim for the $185 was not sustained by proof. • The judgment and order are affirmed, with costs.

McCarthy and Schuchman, JJ., concur.

Judgment and order affirmed, with costs.