
    Barney Scher et al., Respondents, v. Herman Roher, Appellant.
    Appeal from judgment rendered by the justice of the Municipal Court of the city of blew York, for the second district, in-favor of the plaintiffs.
    David Bergstein, for appellant.
    William Blau, for respondents.
   Bischoff, P. J.

The goods in suit were originally sold to the-defendant on credit, so far as there was a balance due over the-sum of $100 paid at the time, but it sufficiently appears from the evidence, in support of the justice’s finding of the fact, that prior to the delivery the agreement was modified by the requirement that the balance be paid when the goods were delivered, the modification being in consideration of the substitution of certain more expensive chattels without extra charge. The result was. that the sale became conditional upon the payment of the money thus due, and it was competent for the justice to find, as matter of fact, that title was not to pass until delivery, accompanied by payment. Empire State T. F. Co. v. Grant, 114 N. Y. 40.

There is no question in the case as to the defendant’s right to-credit for the partial payment, or deposit made by him. Upon re-possession of the goods by the plaintiffs the parties may be considered as being placed in the position which they occupied before-the delivery, or the defendant might be held to have forfeited his right to credit for the partial payment by reason of his breach of' the condition. It is unnecessary to determine the precise standing of the parties, as to this, for the law is settled that the vendor may maintain an action for replevin, under the circumstances disclosed, without any tender of the payments received. Benj. Sales (7th ed.) 301.

The evidence as to the manner in which delivery was procured, without payment, at the defendant’s place of residence negatives any possible waiver of the condition upon which the sale was to depend, and our conclusion is that the cause of action was sufficiently proven.

With regard to the award of damages, as an alternative to possession of the goods, however, we find no basis in the return for the amount fixed by the justice, the sum of sixty-nine dollars. In the absence of proof as to the value of the use of this furniture, the damages are not shown to exceed thirty-nine dollars, with interest, in any aspect of the record, and there should be a reduction accordingly.

The judgment will, therefore, be reversed, and a new trial ordered, with costs to appellant to abide the event, unless plaintiffs shall stipulate to reduce the amount of damages to thirty-nine dollars, with interest from the 23d day of March, 1900; in the event that such stipulation be given, the judgment will be affirmed, without costs.

Levektritt and Cearke, JJ., concnr.

Judgment reversed and new trial ordered, with costs to appellant to abide event, unless plaintiffs stipulate to reduce the amount to thirty-nine dollars, with interest; in event that such stipulation be given, judgment affirmed, without costs.  