The plaintiffs in this action are copartners, and in the course "of their business as. dealers in machinery entered into a contract with the defendants for the purchase of a certain hoisting engine and' boiler, which the plaintiffs, to the knowledge of the defendants, had agreed to deliver to a customer on a certain day on board a vessel which was held for the purpose of receiving such engine and boiler The defendants accepted the check of a third party in payment, and delivered to the plaintiffs an order upon the watchman having the property in charge for the delivery of the same, -stating that this would be sufficient to enable the plaintiffs to secure the engine. The latter hired a truckman, went to the place designated, and were refused possession of the property. After about -one week’s delay the engine and boiler were delivered on board the boat, and this action was brought to recover for the time and money spent by the plaintiffs in getting’ possession of their property, as well as for the expense of keeping the vessel in waiting, which , had cost''them twenty-four .dollars per day. Upon the trial the learned court appears to. have disregarded the claim of the plaintiffs for time spent in the transaction, but allowed for the cost; of keeping the vessel and for the money actually expended in telegraphing, street car fares, etc., and from the judgment entered defendants appeal to this court. . ■ '
The pleadings were verbal; the plaintiffs complained of breach of contract, and the defendants appeared, making a general denial and asking for a bill of particulars. This was ordered and the bill of particulars was served, in which, as a part of the damages, is set forth the following item: “ Demurrage of vessel held in waiting until title to property could.be effected by the1 defendants 7 days at *513$24 per day, $168.” Assuming that the bill of particulars demanded and served after the general denial is within the denial, there was evidence upon the trial that this boat was held for seven days and that the value of the use of this boat was twenty-four dollars per day, and this evidence was received without objection. The theory on which the case was tried was that there was no original liability, and so far as the record discloses there was no question raised as to the liability for the demurrage if there was liability for a breach of the contract to deliver the goods to the plaintiffs. There was no denial by the defendants that they knew the engine was to be delivered on board the. boat and that it was held for this purpose, and evidence being given without objection as to the damages sustained by reason of the boat being held would seem to be conclusive upon the defendants upon this point. The case, in so far as this feature is concerned, appears to have proceeded upon this theory, and I am of opinion that it is within the authority of Booth v. Spuyten Duyvil Rolling Mill Co. (60 N. Y. 487) though lacking, perhaps, in the direct evidence upon the point.
We think no material error was committed by the court.
The judgment appealed from should be affirmed, with costs!
Goodrich, P. J., Jenks and Sewell, JJ., concurred; Hirschberg, J., read for reversal.