Opinion
April 9, 1959
Appeal from the Municipal Court of the City of New York, Borough of Queens, DANIEL E. FITZPATRICK, J.
Weinberg Jacobowitz ( Lois M. Sulman of counsel), for appellant.
Koss Fox ( J. Lewis Fox of counsel), for respondent.
While appellant was not entitled to recover her deposit of $100 after she breached her agreement to accept the automobile she contracted to purchase, respondent failed to prove the proper measure of damages for such breach. The measure of damages for a purchaser's failure to accept a car is the difference between the contract price and the market value at the time and place of delivery, in the absence of proof that there was not a constant and ready market for the class of car involved. (Personal Property Law, § 145; A. Lenoble, Inc. v. Senif, 252 App. Div. 533; Genovese v. A. Lenoble, Inc., 148 Misc. 548, revd. on other ground 154 Misc. 91; Lowas Garage Co. v. Scheer, 199 N YS. 748.)
The judgment, insofar as it dismisses the complaint, should be affirmed. Judgment upon the counterclaim reversed upon the law and the facts and the counterclaim dismissed without prejudice. No costs to either party on this appeal.
Concur — PETTE, DI GIOVANNA and BENJAMIN, JJ.
Judgment affirmed, etc.