109 N.Y.S. 734 | N.Y. App. Term. | 1908
It is difficult to see upon what theory thin judgment can be sustained. Tbe plaintiff’s own evidence shows the facts to be substantially as follows, viz.: Plaintiff is a ladies’ tailor, and defendants are woolen merchants and. importers. Either in December, 1&0'5, or February, 1906 (for plaintiff is uncertain of the date, while defendants are sure it was in December, 1905) defendants’ salesman said to plaintiff: “ I have the best piece of cloth in the market, and I want yon to have one, and I will send yon one up.” Plaintiff replied that be had no immediate use for it, but told tbe said salesman to “ send it in; and, if it is- good, I will put it away on the table.” A day or two later the cloth was delivered to plaintiff. This cloth was not manufactured by defendants, but imported by them from abroad. Plaintiff paid for the goods in May or June, 1906. Tbe said cloth was placed, upon its delivery to plaintiff, upon the latter’s stock table. Thereafter, but on some date not given, plaintiff’s wife cut off thirteen and one-half yards
The judgment and order must be reversed, and a new trial granted, with costs to appellants to abide the event.
Present: Gildersleeve, Seabury and Dayton, JJ.
Judgment and order reversed and new trial granted, with costs to appellants to abide event.