Premier Knitting Co. v. George Raptis Yarns, Inc.

Per Curiam. The plaintiff purchased a quantity of undyed yarn from the defendant. The buyer complained of defects in the goods. When the plaintiff’s dyer objected to dyeing the yarn on its own responsibility, it was sent to a dyer suggested by the seller. The yarn was dyed, and a part thereof was manufactured into sweaters, which proved to be unsatisfactory. The plaintiff paid the purchase price, and thereafter brought this action based on breach of warranty. The issues as to the quality of the yarn and the plaintiff’s damages were submitted to the jury in a charge giving wide latitude in the fixation of damages after resolving the dispute as to quality. The defendant took no exception to this charge, which became the law of the case. The jury rendered a verdict for the plaintiff in the sum of $17,367.08. The defendant moved to set the verdict aside, and the trial court granted the motion “to the extent of reducing the verdict to $1,386 ”. We find that the reduction of the verdict in this ease was improper. The trial court had no power to set the verdict aside and substitute another in its place without the plaintiff’s consent (Civ. Prac. Act, § 549; Egan v. City of New York, 263 App. Div. 387; Duke v. Fargo, 172 App. Div. 746). Further, the trial court reduced the amount of the verdict because of an erroneous construction which it placed upon a letter written by the defendant to the plaintiff on February 6,1951. This letter was deemed to constitute an accord and satisfaction or waiver of claim for damages, except as to a minor portion of the goods. We view this letter in an entirely different light, and do not construe it to warrant any limitation on the buyer’s claim for damages. We think that the plaintiff gave notice of defects in the goods within a time which the jury could find to be reasonable, and that there was ample evidence to support the verdict for $17,367.08 damages. The order appealed from should be reversed and the defendant’s motion to set the verdict aside should be denied; the jury’s verdict in favor of the plaintiff should be reinstated and the judgment appealed from should be modified by increasing the same in the amount of said verdict, with interest and costs to the appellant. Dore, J. P., Callahan, Bastow, Botein and Bergan, JJ., concur. The order appealed from is unanimously reversed and the defendant’s motion to set the verdict aside denied; the jury’s verdict in favor of the plaintiff should be reinstated and the judgment appealed from modified by increasing the same in the amount of said verdict, with interest and costs to the appellant. Settle order on notice.