
    HARRIS v. GILL.
    (Supreme Court, Appellate Term.
    February 4. 1907.)
    Sales—Action fob Price.
    Plaintiff alleged and proved the sale and delivery of goods to defendant at an agreed price. There was a conflict of evidence as to whether or not the goods were defective. Defendant showed no offer to return, but, on the contrary, kept the goods. Held, that plaintiff was entitled to recover the value of the goods upon a quantum meruit.
    Appeal from Municipal Court, Borough of Manhattan, Seventh District.
    Action by Jacob J. Harris against Andrew Gill. From a judgment for plaintiff, defendant appeals. Reversed and remanded.
    Argued before GILDERSLEEVE, BLANCHARD, and DAYTON, JJ.
    Harris & Fischer, for appellant.
    Geo. A. Steinmuller, for respondent.
   PER CURIAM.

The furnishing of the goods at an agreed price is conceded. Defendant’s wife testified that the linoleum, when laid, was defective. Plaintiff claimed that this dispute was settled at $3, leaving a balance of $69.38. Defendant did not testify, nor offer to return, but, on the contrary, kept the goods, so that in any event plaintiff would be entitled to recover their value upon a quantum meruit. It was error to dismiss the, complaint.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event.  