Heller v. Tri-Boro Enterprises, Inc. , 28 Misc. 2d 585 ( 1960 )

Per Curiam.

The cabinets delivered were in exact accord with the contract. Plaintiff knew that actual installation might require adjustment for minute variations. However he chose to install them himself. He cannot now complain or seek to have a service performed for which he did not contract. Any finding based on a variance between the form of the contract when made and when offered in evidence was not based on proof sufficient to raise an issue.

The judgment should be reversed, with $30 costs, and complaint dismissed, with costs to appellant.

Concur—Hecht, J. P., Steuer and Tilzer, JJ.

Judgment reversed, etc.