Opinion
May, 1908.
Tobias A. Keppler, for appellant.
Robert F. Randall, for respondent.
Plaintiff delivered, on November 30, 1907, an overcoat to defendant, a tailor, to be cleaned and repaired, and to be returned to plaintiff at six p.m., on December 2, 1907. It was not returned; and, at midnight on said December 2, 1907, the defendant's place was entered by burglars and said coat was stolen. Plaintiff sued for "breach of contract" and recovered a judgment for forty dollars, the supposed value of the coat, together with costs. Defendant appeals. There is no evidence of negligence on defendant's part so far as the burglary is concerned. The defendant, however, was guilty of a breach of contract, in failing to return the coat to plaintiff at six p.m.; and the resulting damage of such breach of contract was the loss of the overcoat. Defendant, in failing to deliver the coat at the time specified, ran his risk of something happening to it, and must bear the consequences. The amount of the damage allowed, however, was excessive, as the coat, which originally cost forty-five dollars, was one that had been worn for one or two years, plaintiff does not know which, although it seems to have been in fairly good condition when delivered to defendant, according to plaintiff's evidence, which the court had a right to believe. See Young v. Leary, 135 N.Y. 569-577; Cohen v. Moshkowitz, 17 Misc. 389.
The judgment will be reversed and a new trial granted, with costs to appellant to abide the event, unless plaintiff stipulates to reduce the amount of the damages from forty dollars to thirty dollars, with appropriate costs in the court below; in which case the judgment, as modified, will be affirmed, without costs of appeal to either party.
Present: GILDERSLEEVE, GIEGERICH and GREENBAUM, JJ.
Judgment reversed and new trial ordered, unless plaintiff stipulates to reduce the amount of the damages, in which case judgment modified and as modified affirmed, without costs of appeal to either party.