Tabak v. Fettner
123 N.Y.S. 982
N.Y. App. Div.
1910
Check Treatment
Jenks, J.:

This is an appeal by the defendant from a judgment of the Municipal Court; Thé- plaintiff complained that he and the defendant made a contract whereby the defendant should do.certain work in consideration of $35 cash and an icebox then owned *249by the plaintiff ; that thereafter the plaintiff transferred the title to the icebox to the defendant, who failed in performance of the contract, to the damage of. the plaintiff in $73. The plaintiff’s testimony was that the parties agreed upon $73 as the value of the icebox, as it constituted a part of the consideration of the contract, and the judgment is for that sum. The plaintiff’s avowed theory of his action is upon the implied contract to pay for the icebox. Such action is in rescission of the contract because of the refusal of performance by the defendant, who therefore retains the consideration without consideration, and the action is upon the implied promise to return the consideration. (Freer v. Denton, 61 N. Y. 492, and cases cited.) ' The plaintiff, if he prevail, is entitled to the consideration or its value. But this is not the arbitrary value determined by the parties for the particular purposes of the contract which the plaintiff has thus rescinded, but the actual value thereof. Hence I think that the defendant should have been permitted to give evidence as to the actual value of the icebox.

The judgment is reversed and a new trial is granted, costs to abide the event.

Hirsohberg, P. J., Burr, Thomas and Carr, JJ., concurred.

Judgznent of the Municipal Court reversed and new trial ordered, costs to abide the event.