
    Annetta Garment Company, Respondent, v. Kurlander Bros. & Harfield Cloak and Suit Company, Appellant.
    
      Contract — sale — action to recover loss sustained through return by 'purchaser of merchandise sold and delivered — defense that goods were not in accordance with specifications and that plaintiff had consented to their return.
    
    
      Annetta Garment Co. v. Kurlander Bros., 202 App. Div. 804, affirmed.
    (Submitted May 2, 1923;
    decided May 29, 1923.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 30, 1922, which affirmed a determination of the Appellate Term affirming a judgment of the Municipal Court of the city of New York in favor of plaintiff. The amended complaint alleged that the plaintiff sold and delivered to the defendant certain goods, wares and merchandise at the agreed price of $1,487.50; that about August 1, 1918, without consent of the plaintiff the defendant returned said merchandise, and that thereafter the plaintiff sold said merchandise for $1,000, sustaining a loss in the sum of $487.50. The answer of the defendant alleged that on or about May 8, 1918, an agreement was entered into, wherein the plaintiff was to manufacture and deliver certain ladies’ garments, pursuant to certain fixed specifications and at a price certain. The plaintiff made up some garments which upon their receipt and examination by the defendant were found not to be according to the specifications laid down, and when this fact was called to the attention of the plaintiff a subsequent agreement was entered into- between the parties to return said merchandise to the plaintiff and this the defendant did. As a second defense, defendant alleged that the goods attempted to be delivered were not according to the specifications as set down, and that upon their examination they were found to be different from the agreement and specifications, and that the defendant immediately returned the same to the plaintiff,
    
      
      Louis Sachs for appellant.
    
      James S. Friedman for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Hogan, Cardozo, Pound, McLaughlin and Crane, JJ. Absent: Andrews, J.  