
    J. DICKMAN & CO. v. BERLIN.
    (Supreme Court, Appellate Term.
    May 7, 1909.)
    Sales (§ 391)—Breach oe Warranty—Recovery oe Price Paid.
    A buyer of a horse, under a warranty and an agreement by the seller to take it back, if not as warranted, who returned the horse to the seller on finding that it did not comply with the warranty, was entitled to recover the price paid.
    [Ed. Note.—For other caseá, see Sales, Cent. Dig. §§ 1120, 1121, 1129; Dec. Dig. § 391.*]
    Appeal from Municipal Court, Borough of Manhattan, Seventh District.
    Action by J. Dickman & Co. against Max Berlin. From a judgment for defendant, plaintiffs appeal.
    Reversed.
    Argued before GILDERSLEEVE, P. J., and DAYTON and GOFF, JJ.
    Katz & Sommerich (Maxwell C. Katz and Otto C. Sommerich, of counsel), for appellants.
    Joseph • S. .Rosalsky (Abraham Landau, of counsel), for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   PER CURIAM.

Plaintiff bought a horse of defendant and paid him $50 therefor at the time óf purchase. The uncontradicted evidence is that defendant warranted the horse to be kind, good-winded, and to do good work; and defendant agreed to take him back at any time if the Horse were found to be otherwise. The plaintiff claims, without any specific contradiction, that the horse balked and would not do good work, and the horse was returned to defendant’s place, where it apparently still remains.' The plaintiff sues to recover the purchase price. The court found for defendant. Plaintiff appeals. The judgment is clearly against the evidence, and must be reversed.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event. ' ’. -  