Opinion
December 16, 1940.
In an action to recover the balance of the purchase price of a refrigerator pursuant to a conditional sales contract, judgment of the County Court of Orange County in favor of plaintiff reversed on the law and the facts and matter remitted for determination pursuant to a further stipulation or for trial, costs to abide the event. The stipulation is insufficient to constitute a basis for a determination of the issues presented by the pleadings. Instead of setting forth all the material facts, the stipulation presents a question which assumes facts but, in any event, omits such factors as would determine the right to and the amount of recovery. Nowhere in the stipulation is it expressly stated that the warranty which is to be assumed was in fact breached. Nor was it stipulated that the refrigerator was worthless. Obviously, the defendant would not be entitled to recover the payments made on account of the purchase price and to retain the machine at the same time, and to urge such a measure of recovery after installment payments for one year. ( Donovan v. Aeolian Co., 270 N.Y. 267, 272-274.) Lazansky, P.J., Hagarty, Carswell, Taylor and Close, JJ., concur.