Tamargo v. S. Silberstein & Sons, Inc.

Proskauer, J.:

Defendant contracted to sell and plaintiff to buy certain voiles for export; delivery f. a. s. steamer New York. One thousand dollars was paid as a deposit by the buyer. The goods were not delivered and the buyer sues to recover back the deposit. Defendant resists on the ground that shipping instructions were never given to it.

In reversing a former judgment for plaintiff, Mr. Justice Dowling wrote (201 App. Div. 19): “ Under the complaint herein this action must be treated as one solely to recover back a deposit, and from that viewpoint it was incumbent upon the plaintiffs to…