NEWMAN v. MAGGIO


285 A.D. 1155 (1955)

Lewis Newman, Appellant, v. John Maggio, Doing Business as Rapid Cleaners, Respondent

Appellate Division of the Supreme Court of the State of New York, Second Department.

May 2, 1955.


Judgment reversed on the law, with costs, and new trial granted.

While the jury could find that the parties modified the original agreement to provide that appellant was obligated to deliver the cleaning machine and the tumbler only, and that respondent could rescind if there was a breach of warranty as to those articles, nevertheless it is undisputed that, long after discovery of the alleged breach, the respondent retained and used the articles after the refusal...

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