140 N.Y.S. 573 | N.Y. App. Term. | 1913
Plaintiff, an infant, sues to recover money paid to the defendant under the terms of a chattel mortgage given by plaintiff to defendant to secure the payment of $250', the amount of the purchase price of a piano sold by the defendant to the plaintiff. The money paid by plaintiff amounted to $165, which is the sum which the plaintiff seeks to recover in this action. The evidence shows that the plaintiff used the piano for three arid one-half years after it was delivered to her, and that the reasonable value of the use of the piano during that time is in excess of the amount which the plaintiff paid on account of the purchase price. There is also evidence to show that the piano had materially depreciated in value, and that the plaintiff still retains the possession of the piano, although her lawyer wrote to the defendant offering to return it if the latter would repay to the plaintiff the sum of $165. Under the circumstances disclosed, the complaint should
Gerard and Bijur, JJ., concur.
Judgment reversed, with costs, and complaint dismised, with costs.