
    Frank Denino, Respondent, v. Long Island Carpet Cleaning Company, Appellant.
    Supreme Court, Appellate Term, First Department,
    February 16, 1928.
    Sales — action by buyer for breach of contract — failure of buyer to call for goods for forty-two days justified seller in reselling them.
    A seller of goods is justified in reselling the same where tho buyer fails for forty-two days to call for the goods as required by his contract. Under the circumstances the seller had the right to assume that the contract had been abandoned.
    Appeal by defendant from judgment of the Municipal Court, Borough of Manhattan, Fourth District, in favor of plaintiff.
    
      Carl Ehlermann, for the appellant.
    
      Melvin S. Brotman, for the respondent.
   Per Curiam.

Defendant was justified in concluding, on the plaintiff’s delay of forty-two days in removing the motors from defendant’s place of business, that plaintiff had abandoned the contract to purchase, and that it, the defendant, had the right to regard the motors as unsold and as property which it could sell. The sale under the circumstances was justifiable, and plaintiff was not entitled to recover as for the value of property owned by plaintiff and wrongfully converted by defendant, or upon the theory that defendant had breached its contract of sale with plaintiff.

Judgment reversed, with thirty dollars costs, and complaint dismissed on the merits, with costs.

All concur; present, Bijur, Delehanty and Crain, JJ.  