Ellis v. Allen

125 Misc. 841, 211 N.Y.S. 488, 1925 N.Y. Misc. LEXIS 943

Opinion

Pee Curiam:

Judgment, in so far as appealed from, unanimously reversed upon the law, with thirty dollars costs to appellant, and judgment directed for plaintiff for ninety dollars, the amount admittedly unpaid, with appropriate costs in the court below.

It was error to admit proof of the declarations of the salesman of plaintiff’s assignor, made months after the transaction in question, to the effect that he knew the machine had been used when he sold it to the defendant, although he then represented it to be new.

Declarations of an agent, made in connection with the transaction of the business of his principal, may be admissible against the latter. (Sharlette v. Lake Placid Co., 194 App. Div. 844.)

But declarations of an agent, made subsequently, and which have no connection with any transaction then being conducted by him with authority of his principal, are inadmissible. (Anderson v. Rome, W. & O. R. R. Co., 54 N. Y. 334; State Bank of Brocton v. Brocton Fruit Juice Co., 208 id. 492,495; Renard v. Grenthal, 145 N. Y. Supp. 947.)

But, even if there had been proper proof of a breach of warranty, the defendant could not take advantage of it, as he failed to give notice to the seller within a reasonable time after he learned of the breach, and continued to use the machine for years thereafter.

Present: Ceopsey, Lazansky and MacCkate, JJ.