
    Lew Pascone, Appellant, v. John Karl et al., Doing Business under the Name of Karl Motor Sales, Respondents.
   — Plaintiff appeals from a judgment of the City Court of Troy, dismissing his complaint in an action brought under the Defense Production Act to recover treble damages and attorney’s fees for an alleged overcharge on the sale of an automobile. Plaintiff purchased a 1946 Plymouth sedan from the defendants for $550. After using the same for eight days he became dissatisfied with it and returned it to the defendants. They told him to pick out something else. He selected a 1940 Pontiac sedan, the ceiling price for which under O. P. S. regulations was $365, plus $10 for a radio and $10 for a heater, or a total of $385. The defendants demanded $100 in addition, which plaintiff paid, making his total investment $650. Plaintiff sued to recover treble damages under subdivision (e) of section 409 of the Defense Production Act of 1950 (U. S. Code, tit. 50, Appendix, § 2109, subd. [e]). The City Court dismissed his complaint on the ground that two separate transactions were involved. We think the evidence fairly indicates a rescission of the first agreement of sale for the 1946 Plymouth sedan. Hence, plaintiff was entitled to credit for $550 which he paid thereon. When he was required to pay an additional $100 for the 1940 Pontiac sedan he was overcharged the difference between $385 and $650, or the sum of $265. Judgment directed for the plaintiff in the sum of $265, plus a counsel fee of $200, with costs (Troy City Ct. Act, § 189). Foster, P. J., Bergan, Coon, Halpem and Imrie, JJ., concur.  