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MARTIN POLASKI v. ALBERT LEVIN AND MIRIAM S. LEVIN (09/28/54)

September 28, 1954

MARTIN POLASKI
v.
ALBERT LEVIN AND MIRIAM S. LEVIN, APPELLANT



COUNSEL

A. Jere Creskoff, Leonard L. Creskoff, Philadelphia, for appellants.

Louis Waber, Philadelphia, for appellee.

Before Ross, Acting P. J., and Gunther, Wright, Woodside and Ervin, JJ.

Author: Ross

[ 176 Pa. Super. Page 370]

ROSS, Judge.

This is an action of trespass brought by Martin Polaski against Albert Levin and Miriam S. Levin, his wife, to recover the sum of $600. After trial in the Municipal Court of Philadelphia County, the jury returned

[ 176 Pa. Super. Page 371]

    a verdict for plaintiff in the amount of $600. Defendants' motions for judgment n. o. v. and for a new trial were overruled by the court below and this appeal was taken by defendants.

With controverted facts and inferences arising therefrom resolved in plaintiff's favor, the circumstances which gave rise to the instant action may be summarized as follows: The wife defendant was the owner of an Oldsmobile sedan. On June 13, 1949 an advertisement appeared in a Philadelphia newspaper which read in part: 'Olds. '42 sedan, R. & H. Hydramatic. Bought new in '44. New white wall tires. Good cond. Must sell immed. Need cash. * * *'

In response to the newspaper advertisement plaintiff visited the defendants' home to look at the automobile. Plaintiff testified: 'Mr. Levin told me the car was in good condition, and I wouldn't have any trouble with it for about a year. * * * I said, 'I would like to get a mechanic to look at the car.' He said, 'You don't need a mechanic. I will take you for a ride.' He took me for a ride for four or five blocks. I said, 'I would like to have a mechanic.' He said, 'You don't need a mechanic. The car is in good condition.'

After the ride plaintiff noticed that the car had an 'old inspection sticker' on it. He then offered to give the husband defendant a $10 'deposit' against the agreed price of $650 if the defendants could get the car 'legally inspected'. Some time later plaintiff was informed by the husband defendant that the car had been inspected. Plaintiff went to the defendants' 'place of business', 'noticed the new sticker' and gave the husband defendant $640. Because plaintiff was 'not familiar in shifting the hydramatic' he did not then drive the car; instead, the wife defendant drove him to his home, a distance of about 30 blocks.

[ 176 Pa. Super. Page 372]

Plaintiff testified: 'It took about four or five days for the registration plates to come through. When they arrived, I put the tags on the automobile ready to go to work. I noticed a big puddle of some fluid underneath the car * * * and I noticed the car didn't pull away with the power it should have.' Thereupon plaintiff took the car to a garage, where it was examined, and it was determined that the car required the expenditure of nearly $450 for parts and labor 'necessary to pass State inspection'. On June 27, 1949 plaintiff complained to the Pennsylvania State Police 'that a car he had purchased on the 13th of June, 1949, from Miriam S. Levin * * * was in bad condition, and had displayed a new inspection sticker'. A state policeman directed plaintiff to take the car to another garage where the policeman and a garageman examined it. The officer, testifying for the plaintiff, stated that the state inspection ...


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