Collins v. Brooks

Decided February 15, 1861

New York Court of Common Pleas · decided 1861-02-15

The defendant was proprietor of a boot store. The plaintiff bought a pair of patent leather boots at the defendant’s store, and paid $10 therefor,—the defendant warranting them to be “ a fine pair of boots.” The plaintiff, on reaching his home, discovered a slight tear in the leg of the left boot, and on the following day he returned the boots to the same salesman, and reclaimed the price, on the ground of the defect.

Cited by 2 later decisions — most recently February 1897

2 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1861-02-15

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By the court, Hilton, J.

¶1I think this verdict should not be disturbed, although I fully agree with Judge Daly in the rule of law stated by him. But in the present case the defendant, by accepting the return of the boots, without objection, must be regarded as consenting to rescinding the contract, and therefore cannot retain the money paid him on account of it. Upon the evidence the plaintiff was entitled to the verdict which the jury gave, and the charge of the judge cannot operate to deprive him of it. In my opinion the judgment should be affirmed.

¶2Brady, J., concurred with Judge Hilton in the view of the case presented by his opinion.

¶3Daly, J., dissented.