MacCambridge v. Roth ( 1913 )

GUY, J.

Plaintiff sues to recover the purchase price of- a brace, which defendants sold to plaintiff under a warranty. Within a week of the time fixed for the expiration of the warranty, the plaintiff asked the defendants to fix the brace, although the defendants had frequently repaired the brace previous to that time. When this request was first made, the defendants asked payment for fixing it, but immediately thereafter did repair it and tender it to the plaintiff, who refused to accept it. The basis of»the action'is a rescission of the contract, but in view of the fact that the brace was repaired by defendants and tendered to the plaintiff, this was not such a breach of the contract as justified a rescission. Callanan v. K. A. C. & L. C. R. R. Co., 199 N. Y. 269-284, 92 N. E. 747.

Judgment reversed, with costs, and complaint dismissed, with costs.

SEABURY, J., concurs. BIJUR, J., took no part.