
    BEECROFT v. VAN SCHAICK.
    (Supreme Court, Appellate Term.
    May 16, 1907.)
    Sales—Action by Buyer—Recoveby oe Price.
    ■Where an automobile was sold under a warranty for one year, and soon after delivery it got out of order, and after repeated unsuccessful attempts to remedy the defects the buyer sent It to a garage and wrote the defendant that he returned it under the terms of the agreement, the buyer can recover the price paid.
    [Ed. Note.—For cases in point, see Cent Dig. vol. 43, Sales, §§ 1125, 1126.]
    Appeal from City Court of New York, Special Term.
    Action by Edgar C. Beecroft against Charles D. Van Schaick. From a judgment for plaintiff, and an order denying a new trial, defendant appeals.
    Affirmed.
    Argued before GIUDERSEEEVE, P. J., and SEABURY and BRADY, JJ.
    Uouis E. Kuster (Charles S. Simpkins, of counsel), for appellant.
    Frederick E. Grant (Edgar C. Beecroft, of counsel), for respóndent.
   SEABURY, J.

The plaintiff seeks in this action to recover from the defendant $685, which he paid to him as the price of an automobile which he purchased from the defendant. The plaintiff claimed, and the jury found, that the automobile was sold under a warranty for a period, of one year, and that soon after its delivery it got out of order. After repeated attempts to remedy the defects, all of which were unsuccessful, the plaintiff sent the automobile to a garage in New York City and wrote the defendant that he returned it under the terms of the agreement.

The complaint stated a cause of action, and the evidence adduced justified the finding of the jury that there had been a breach of warranty and that the automobile was returned to the defendant. The record shows many objections urged and exceptions taken by the counsel for the defendant upon trivial grounds, but discloses none that have merit. The trial justice was subjected to a series of captious objections to remarks that were made in the course of the trial, none of which were prejudicial to the defendant, and many of which were entirely proper. Even the language used by the court in its charge is now criticised as “not specific enough,” although at the close of the charge the court inquired if counsel had any suggestions to make, and the counsel who now objects to the charge replied: “I think your honor’s charge is right, and I have no exception.”

Judgment affirmed, with costs. All concur.  