
    Myer Lippa vs. S. Z. Ostiguy
    No. 86788.
    March 29, 1932.
   CAPOTOSTO, J.

The plaintiff claims damages for the delivery to him of a defective and used automobile instead of a reasonably good and new car. The jury brought in a verdict for the plaintiff in the sum of $305.59. The defendant is not satisfied and asks for a new trial upon the usual grounds.

The plaintiff did not get what he reasonably could expect. He paid the full purchase price of the automobile and got in return a motor vehicle which was more acquainted with the repair shops than with the highways of travel. Besides minor defects, he was in possession of a car which persisted in over-heating and with a cracked cylinder head. Carbon, 1/16 of an inch thick, had to be burnt out after the automobile had been run only about 6001 miles. An expert for the plaintiff stated that this condition is to be found in case a car has been run between 3,000 to 4,000 miles. This fact, together with others of minor importance, is used as a basis for the claim that the car had been .used possibly as a -demonstrator before delivery to the plaintiff.

For plaintiff: Morris Beriek.

For defendant: Thomas P. Corcrran, C. E. Mangan.

The defendant introduced certain records and other testimony in support of his claim that the automobile in question had not and could not have been used before delivery to the plaintiff. The frequent return of the car for minor adjustments, overheating and a cracked cylinder head were not disputed.

The fundamental question for the jury was one of credibility. They believed the plaintiff and so did the Court. Both the plaintiff and the jury were guided by good common sense in their respective problems.

Motion for new trial denied.  