judgment. On August 12 the court set aside the "verdict" and ordered a new trial. [1] The case was tried without a jury, so that there was no verdict, and, unless it be held that the setting aside of the "verdict" set aside the judgment which had been entered on or about June 17, plaintiff was not seriously prejudiced, for apparently in so far as the order granted a new trial it would be nugatory in face of the existing judgment; in other words, there could be no new trial had unless the judgment was set aside. Municipal Court Code (Laws 1915, c. 279) § 129, subd. 3. [2] Assuming, however, that the order may be deemed one setting aside the judgment, and considering the matter on the merits, the order cannot be upheld. The defendant's motion was not to vacate the judgment, but to set aside the order of arrest granted pursuant to the judgment; that was the motion which plaintiff was called upon to oppose, and the mere fact that defendant asked for other and further relief did not authorize the judge of his own motion 40 days after the entry of the judgment, and more than 20 days after the date within. which a motion to set aside a verdict or judgment could be made returnable, to set the judgment aside and order a new trial. In either view of plaintiff's appeal, the order should be reversed., [3] Upon defendant's appeal from the judgment it appears that included in the award to the plaintiff is an item for storage of the automobile purchased by plaintiff from defendant and as a result of defendant's fraudulent representations. Defendant contends that the issue litigated was one for the recovery of damages for the fraud of the defendant, and that therefore it could not be held for storage of the car after delivery to plaintiff. However, plaintiff maintains that the evidence shows a rescission of the contract, that upon being informed of the fraud she offered to return the car to the defendant, that on defendant's refusal to receive the car she was put to the expense of storing it, and that under the circumstances defendant was chargeable with such expense. A reading of the testimony in the light of plaintiff's brief is convincing that plaintiff sought damages for the alleged fraud, and not a recovery as upon a rescission of the contract, and the trial judge correctly held that he had erred in fixing plaintiff's damages. Judgment and order reversed, and a new trial ordered, without costs of appeal to either side. LEVEQUE v. PELDA. (Supreme Court, Appellate Division, Second Department. July 22, 1922.) Clerks of courts 67-Case on calendar at passage of statute entitled to remain. Civil Practice Act, § 1557, subd. 3, as amended by Laws 1922, c. 144, applies only to causes placed on the calendar subsequent to March 22, 1922, when the act took effect, and a case on the calendar at that time was entitled to remain thereon until disposed of pursuant to Code Civ. Proc. § 977. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (195 N.Y.S.) Application by Nelson Leveque for a writ of mandamus against Fred J. Pelda. From an order denying the application, plaintiff appeals. Reversed. PER CURIAM. Order denying application for mandamus reversed" on the law, without costs, and application granted, without costs. Subdivision 3 of section 1557 of the Civil Practice Act, as amended by chapter 144 of the Laws of 1922, applies only to cases placed on the calendar subsequent to March 22, 1922, when that act took effect. This case was on the calendar at that time, and was entitled to remain thereon until disposed of pursuant to section 977 of the Code of Civil Procedure. (Supreme Court, Appellate Division, First Department. July 14, 1922.) Sales 418 (2)-Purchaser held entitled to damages for shortage by reason of appreciation to time of actual delivery. Where sugar was to be delivered March 31st on a steamer to be furnished by the buyer, but the buyer requested the seller to obtain a steamer. and the sugar was not delivered until April 27th, at which time buyer discovered a shortage, buyer was entitled to damages as of the date of April 27th; the sugar having appreciated in value. Clarke, P. J., dissenting. Appeal from Supreme Court, New York County. Action by Bishop C. Perkins against Levis W. Minford, Eberhard L. Lueder, and Levis W. Minford, Jr., as copartners, etc. From a judgment entered on the verdict of a jury, directed by the court, plaintiff appeals. Modified and affirmed. Argued before CLARKE, P. J., and LAUGHLIN, SMITH, PAGE, and GREENBAUM, JJ. Carter, Ledyard & Milburn, of New York City (E. DeT. Bechtel, of New York City, of counsel, and A. D. Smith, of New York City, on the brief), for appellant. Feiner & Maass, of New York City (Ira Skutch, of New York City, of counsel, and Benjamin F. Feiner, of New York City, on the brief), for respondents. SMITH, J. The plaintiff by this appeal complains simply of the insufficiency of the judgment, claiming that the date upon which the court computed the damages was not the proper date. The plaintiff purchased of the defendants 10.000 bags of sugar, which were to be shipped from Cuba to New Orleans. According to the original contract in March, 1920, the plaintiff was to furnish the steamer. The Ward Line usually furnishes the steamers for transportation of freight between Cuba and New Orleans. The plaintiff was dissatisfied with the service that had been theretofore obtained from the Ward Line and asked the defendants if it were possible to get a steamer from some other line to carry the freight. To this the defendants assented For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes and procured a charter party of the steamer Tuscan of the Munson Steamship Line on March 19, 1920. This steamer did not report in Cuba until the 12th of April, 1920. It sailed from Cuba upon the 21st of April and reached New Orleans upon the 27th of April. It was provided in the contract that the net landed weight should be determined at the port of discharge, to wit, New Orleans. When the steamer did arrive, it was found that there was a shortage in the sugar to the extent of 223,024 pounds. The defendants have consented to a judgment to the amount of $14,052.56, which represents the difference between the market value of the sugar upon the 31st day of March and the contract price. The plaintiff claims, however, that inasmuch as the shortage could not have been discovered, and was not discovered until the arrival in New Orleans upon the 27th day of April, he is entitled to the difference between the market value of the sugar and the price agreed to be paid therefor upon the said 27th day of April, which would amount to $25,368.98. It is contended on behalf of the defendants that, because the sugar could have been shipped by a steamer of the Ward Line in time to have reached New Orleans upon the 31st day of March, when, under the contract as originally made, the defendants were bound to deliver the same, and that, inasmuch as the delay was caused at the request of the plaintiff, the defendants cannot be charged with a greater measure of damages than that to which they would be liable if the sugar had been shipped upon the Ward Line and had reached New Orleans and the shortage there discovered upon the 31st day of March. In the complaint it is alleged that the defendants chartered this steamer, the Tuscan, and that upon March 19, 1920, the defendants notified the plaintiff that they had provided the vessel Tuscan and arranged for the transportation of said sugar from Cuba on or about March 25, 1920. Under this allegation, showing the assent of the defendants to the shipment upon this steamer, and the assent of the plaintiff thereto, any delay caused by reason of the failure of the steamer to reach the port of shipment and take the cargo would be a delay chargeable to both parties, and it is clear that if the market value of the sugar had depreciated during the time of the delay, the defendants would have had the benefit of such depreciation of market value, and should likewise be charged with the appreciation in the market value which did in fact take place between March 31st and April 27th, when, in fact, the sugar did arrive, and at which time only was it possible to ascertain that there was an actual shortage. This shortage was the fault of the defendants, not the fault of the plaintiff, and if the plaintiff is entitled to damages for the amount of damage that he suffered by reason of this shortage, the defendants cannot complain if the damages were greater by reason of such appreciation of market value during the time of the delay. The plaintiff is entitled to the sugar contracted for, and if compelled to buy it in the open market in order to make good the shortage, such purchase could only be made after the shortage was actually ascertained upon the delayed date of April 27th. I can see no reason for varying the rule of damage as of the date of delivery, by reason of the fact that the plaintiff asked for another (195 N.Y.S.) steamer, which was assented to by the defendants in the procurement by the defendants themselves of the steamer. It is contended that the plaintiff should have alleged an alteration in the contract. But, if there was an alteration in the contract, that alteration is shown by the complaint itself, when it is alleged that the steamer was procured by the defendants, even though at the request of the plaintiff. If the contract had originally provided that the shipment was to be in March upon the steamer Tuscan, which was expected to arrive at the port of shipment on the 25th of March, and the plaintiff had suffered greater damage by reason of the delay in the arrival of the steamer, and such damage had been suffered by the default of the defendants in failing to ship the amount of sugar required, I think the plaintiff has established his right to recover for such increased damage. I think the judgment should have been directed for the amount demanded in the complaint, which amount is not in question, if the date upon which the damages are to be estimated be the date of actual delivery. Judgment should be so modified, with costs to appellant. LAUGHLIN, PAGE, and GREENBAUM, JJ., concur. (201 App. Div. 803) DEREN COAT CO., Inc., v. BECKER et al. (Supreme Court, Appellate Division, Fourth Department. June 30, 1922.) Sales 441 (4)—Evidence as to damages held not to sustain recovery for breach of warranty. Evidence of the purchase price and that cloth sold was unsuitable for buyer's purpose held not sufficient to sustain recovery for breach of warranty, as it failed to show the difference in the value of the cloth as warranted and as it actually was. Appeal from Supreme Court, Jefferson County. Action by the Deren Coat Company, Inc., against William F. Becker and others, doing business under the firm name and style of M. Becker & Sons. From a judgment for $5,221.14 for plaintiffs, and an order denying defendants' motion for a new trial, defendants appeal. Judgment and order reversed. Argued before KRUSE, P. J., and HUBBS, CLARK, DAVIS, and SEARS, JJ. Morrison & Schiff, of New York City (Jacob R. Schiff and Samuel W. Dorfman, both of New York City, of counsel), for appellants. Pitcher & O'Brien, of Watertown (F. B. Pitcher, of Watertown, of counsel), for respondent. PER CURIAM. Two inconsistent causes of action are stated in the complaint, arising out of the same breach of warranty: One, an affirmance of the contract to recover damages for the breach; and the other, in disaffirmance of the sale, to recover the purchase price paid for the goods, based upon rescission for such breach. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes Assuming, as contended by respondent, that the action was tried upon the theory of rescission and not to recover damages for the breach of warranty, the rule of damages adopted was the difference in value of the goods as warranted and as they actually were, allowing, under certain contingencies, for profits in manufacturing the goods as warranted into garments. Such a rule has no application to an action based upon rescission. If it was intended to submit the case to the jury as one for recovery of damages for the breach of warranty, the evidence is lacking to show the difference in value of the goods as warranted and as they were. The only evidence upon that subject is the purchase price and the testimony of plaintiff's witness to the effect that the cloth was unsuitable to make coats out of and of no value at all in his business. As regards the special damages, there is no allegation in the first count of the complaint, which is for damages for breach of warranty, that the defendants knew that the plaintiff bought the goods for the purpose of manufacture into garments, as there is in the second count, based upon rescission. Judgment and order reversed on questions of law and fact, and new trial granted, with costs to appellants to abide event. The reversal upon the facts is upon the ground that the verdict is against the evidence upon the question of damages. GLOBE ELEVATOR CO. v. AMERICAN MOLASSES CO. OF NEW YORK. (Supreme Court, Appellate Division, Fourth Department. June 30, 1922.) Sales 406-Specific time need not be fixed in demanding delivery. Where seller failed to deliver molasses, it was not a condition precedent to buyer's action for breach of contract that plaintiff, in demanding delivery, fix a specific time therefor. Appeal from Supreme Court, Erie County. Action by the Globe Elevator Company against the American Molasses Company of New York. From a judgment and an order for defendant, plaintiff appeals. Judgment and order reversed, and new trial ordered. Argued before KRUSE, P. J., and HUBBS, CLARK, DAVIS, and SEARS, JJ. Gibbons & Pottle, of Buffalo (Frank Gibbons, of Buffalo, of counsel), for appellant. Stroock & Stroock, of New York City (Simon Fleischmann, of New York City, of counsel), for respondent. PER CURIAM. We are of opinion that the complaint, as supplemented by the bill of particulars and opening statement of counsel, makes out a cause of action. We decline to pass upon the effect of the various letters and telegrams set forth in the bill of particulars. without knowing their contents, or upon the oral conversations not For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |