Ginsberg v. Lawrence

121 N.Y.S. 337

Opinion

WHITNEY, J.

Plaintiff is a dealer in secondhand sewing machines. He sold one to defendants, stating that it was in very good condition. He let them have it on 10'days’ trial. They paid $25 on account after holding it some days. They were manufacturers of ladies’ underwear, using about 40 machines in their business. Thereafter, on being sued for the balance, they admitted the allegations of the complaint, but set up in defense and as a counterclaim that the machine was not in good condition.- The court properly dismissed the counterclaim, but sustained the defense', and entered judgment for defendants, with costs.

Defendants’ theory was breach of express warranty: Plaintiff’s statement was not a warranty, but only an expression of opinion (Oneida Manufacturing Society v. Lawrence, 4 Cow. 440; Bartlett v. Hoppock, 34 N. Y. 118, 88 Am. Dec. 428); and breach of express warranty is matter for counterclaim, not for affirmative defense after the goods have been accepted (Nash v. Weidenfeld, 41 App. Div. 511, 58 N. Y. Supp. 609, affirmed 166 N. Y. 612, 59 N. E. 1127).

Judgment for defendants must be reversed, and judgment entered for the plaintiff for the amount of the claim. All concur.