
    ALTSCHUL v. KOVEN et al.
    (Supreme Court, Appellate Term.
    June 22, 1905.)
    1. Sales—Acceptance of Goods—Waives of Defects—Recovery of Pbioe.
    A buyer who voluntarily pays the amount due on the goods, less an agreed deduction, after he has discovered that they will not answer his purpose, cannot recover back the money so paid.
    [Ed. Note.—For cases in point, see vol. 43, Cent Dig. Sales, §§ 1112, 1113.]
    2. Same—Failure to Fulfill Contract—Remedy of Buyeb—Recovery of Price.
    A buyer who orders goods of a certain kind and weight, which the seller undertakes, but fails, to furnish, may recover back so much of the price as he has paid in advance.
    [Ed. Note.—For cases in point, see vol. 43, Cent. Dig. Sales, §§ 1115, 1125.]
    Appeal from Municipal Court, Borough of Manhattan, Seventh District.
    Action by Jacob Altschul against Rudolph O. Ktiven and another. From a judgment for plaintiff, defendants appeal.
    Modified.
    Argued before SCOTT, P. J., and DUGRO and MacLEAN, JJ.
    Noble, Jackson & Hubbard (James J. Lewis, of counsel), for appellants.
    Paul Gross, for respondent.
   PER CURIAM.

So far as concerns the money paid for the first set of covers, the plaintiff should not be permitted to recover, because he voluntarily paid the balance due on them, less the agreed deduction, after he had, as he says, discovered that they would not answer his purpose. As to the amount paid for the second set, there is some evidence that the order was to furnish covers of a certain kind and weight, that the defendants undertook to do this, and that they failed. If the action had been for the price, the evidence would have justified a judgment for the person who had ordered the work, and the same evidence justifies a recovery of so much of the price as was paid in advance. The question whether the so-called model was a true model is unimportant, since the defendants had an actual, full-sized wagon furnished them to fit the covers upon. Only $30 was apparently paid on the second set, and the judgment should be reduced to that sum, with costs in the court below, and, as modified, affirmed, without costs in this court.  