New York Smelting & Refining Co. v. Lieb ( 1881 )

The court at General Term said:

“The contract implied an obligation on the part of the defendant to make a machine that should be fit to a reasonable degree, to cast metal into bars (Charlotte, Columbia & Augusta R. R. Co. v. Jessup, 44 How. Pr. 447). Under the facts of this case, it was a question for the jury, whether the machine that the defendant made, satisfied his obligation in this respect. Taking the whole charge together, it did not submit this question to the jury; and for that reason, I am of opinion there should be a new trial . . . .”

Leopold Wallach, for appellant. Walsh & Eckerson, for respondent.

“ I am of opinion that the plaintiff was not entitled to recover ; if he had proved a breach of the contract, any gains or profits that he might have made, by reason of the machine, casting metal, faster than it was cast, by previous processes. Whether there would have been any gains would be a matter of speculation and guess.”

Opinion by Sedgwick, Ch. J.; Freedman, J., concurred.

Judgment reversed, with costs of appeal to appellant to abide event, and a new trial is ordered. Order denying motion for new trial, made upon the minutes, reversed, with $10 costs to appellant to abide event.