Maeyers v. McDonough , 154 N.Y.S. 116 ( 1915 )

PER CURIAM.

This action was brought to recover the sum of $112.72 alleged to be due the plaintiffs upon a sale of a quantity of gloves to the defendant. The defendant claimed that certain of the gloves were defective and unfit for use, and that they were sold under a guaranty of quality. She filed with the court a written offer to return to the plaintiffs a quantity of the gloves, which she set forth was of the value of $93.52, and to allow the plaintiffs to take a judgment for the balance due the plaintiffs. This offer was refused, and the case went to trial. The trial justice allowed the defendant the amount of her claim, and gave judgment for the sum of $19.20 damages in favor of the plaintiffs, f,rom which judgment they appeal.

The judgment must be reversed, as there is an utter failure of proof on the part of the defendant as to the value of the gloves which are claimed by her to be defective. The testimony relied upon by respondent fails to support this contention. A few gloves were produced and submitted for the examination of the trial court, but no specified number of packages were shown, and no proof of value given. The offer of judgment is not evidence of value, and there is an entire absence of proof upon this question. There was no basis shown for the allowance made to the defendant in the judgment.

Judgment reversed, and a new trial ordered, with costs to the appellants to abide the event. All concur.