Hunter v. Finnerty , 119 Misc. 724 ( 1922 )

Per Curiam.

Action on a promissory note for $350. Answer that plaintiff sold defendants an automobile for $350 with a warranty that it was good and usable, for which they executed the note in suit, and that the automobile was worthless. Defendants counterclaimed for $219 expended in repairs to the automobile to make it usable. Plaintiff contradicted defendants’ story.

The evidence shows that defendants did not reject the car and never actually rescinded the contract to purchase the same. This being so they had the remedies provided for a breach of the warranty, viz., to recoup in diminution or extinction of the purchase price, or to maintain an action against the plaintiff for their damages.

The remedy here was under section 150, subdivision a, of the Personal Property Law, and involves an abatement of the purchase price which can amount to the whole purchase price only where the goods are worthless. Gerli & Co. v. Mistletoe Silk Mills, 80 N. J. Law, 128, 130.

There is not sufficient proof to show that the car and its parts have no value, nor is there sufficient proof to establish that the parts supplied and the repairs which defendants made, under the plaintiff’s instructions to have the car fixed up, were proper and necessary and that a fair and reasonable price was paid for the same.

Judgment reversed and new trial ordered, with thirty dollars costs to appellant to abide the event.

All concur; present, Guy, Bijur and Delehanty, JJ.

Judgment reversed.