Stewart v. Stern

GIEGERICH, J.

The plaintiff’s appeal is based upon the erro-

neous theory that there was a sale and delivery to him on credit of the chattels sought to be replevied. The evidence, viewed in the most favorable light to the appellant, shows but a sale on condition that the plaintiff would bring a truck, and a check for the purchase price of the same, and that he did return on the same day, and make tender by check for the amount thereof, but which was refused. The evidence on the part of the defendants, however, shows that there was a sale of the chattels in question, conditioned that the plaintiff would immediately take away the goods, and pay for the same, which condition he failed to comply with; and upon his failure to do so the chattels were sold to the defendants. The justice credited the defendants’ version of the transaction, and we see no reason for disturbing his determination of the facts in the absence of the elements which are requisite to review the same. Lynes v. Hickey, 4 Misc. Rep. 522. 24 N. Y. Supp. 731; Weis v. Strauss (Com. Pl. N. Y.) 14 N. Y. Supp. 776. The case, therefore, of Founding Co. v. Grant, 114 N. Y. 40, 21 N. E. 49, cited by both sides, has no application, because there was no delivery in this case. For these reasons the judgment should be affirmed, with costs.